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CONSTITUTIONAL  HISTORY 

OF 

THE  UNITED  STATES 


FROM  THEIR  DECLARATION  OF  INDEPENDENCE 
TO  THE  CLOSE  OF  THEIR  CIVIL  WAR 


BY 

GEOKGE  TICKN:0K  CUKTIS 


IN  TWO  VOLUMES 

Vol.  I. 


NEW  YORK  AND  LONDON 

HARPER  BROTHERS  rUBLISHERS;^^ 
1899 


^ • 7 3 

v^\ 


Copyright,  1889,  by  George  Ticknor  Curtis. 


All  rights  reserved. 


PREFACE. 


More  than  thirty  years  ago  I published  a work,  in  two  volumes, 
entitled  ‘‘History  of  the  Origin,  Formation,  and  Adoption  of  the 
Constitution  of  the  United  States,  with  H^otices  of  its  Principal 
Framers.”  It  met  with  favor  and  found  its  way  into  many  public 
and  private  libraries  throughout  the  country.  It  ended  with  the 
adoption  of  the  Constitution  by  two  more  than  the  number  of 
states  requisite  to  give  it  operation.  It  was  my  intention,  at 
some  future  time,  to  follow  down  the  Constitutional  history  of 
the  United  States  through  the  adoption  of  the  first  twelve,  and 
the  succeeding  amendments.  Circumstances,  however,  delayed, 
and  for  some  years  frustrated,  the  fulfilment  of  this  purpose. 
The  beginning  of  the  Civil  War,  in  1861,  seemed  to  indefinitely 
^s^ostpone  the  time  when  I could  undertake  an  enlargement  of  my 
listing  work ; for  until  that  terrific  contest  should  be  ended,  it 
‘could  not  be  known  whether  Ave  were  still  to  have  the  Constitu- 
' tion  which  was  bequeathed  to  us  by  the  statesmen  Avho  made  it 
'and  the  generation  which  put  it  into  execution.  And  after  the 
Avar  AAms  ended  by  the  triumph  of  the  Federal  arms,  many  more 
years  elapsed  before  I could  feel  that  the  Constitution  had  come 
out  of  the  turmoil  AAuth  its  principles  in  a fair  state  of  preserAm- 
tion.  'Now,  hoAvever,  Ave  may  confidently  believe  that  Ave  and  our 
posterity  have  escaped  the  calamities  Avhich  a loss  of  the  Consti- 
tution Avould  have  entailed.  I,  therefore,  noAv  commit  to  the  in- 
dulgent consideration  of  the  public,  along  Avith  the  text  of  my 
original  Avork,  the  result  of  many  years  of  faithful  labor,  in  Avhich 
I have  traced  the  Constitutional  history  of  the  United  States 
through  the  period  AApen  the  later  amendments  Avere  adopted 
and  put  in  operation,  and  Avhen  our  country  had  entered  upon  a 
neAV  era. 


IV 


PREFACE. 


If  the  historical  accuracy  of  my  former  work  has  ever  been 
called  in  question,  I have  not  been  aware  of  it.  Nor  have  I met 
with  anything  in  the  writings  of  other  authors  who  have  since 
treated  the  same  subject  which  has  led  me  to  doubt  the  correct- 
ness of  my  statements,  or  the  soundness  of  my  interpretations. 
The  work  to  which  I refer  has  been  so  often  consulted  and  relied 
upon  by  those  who  have  had  to  construe  the  Constitution  that  I 
may  be  pardoned  for  believing  that  it  is  reliable.  I have,  thoVo- 
fore,  retained  the  whole  of  my  former  text,  unchanged,  excepting 
in  a very  few  matters  of  , mere  style,  and  have  incorporated  the 
two  volumes  of  the  original  work  in  the  first  volume  of  the  pres- 
ent history.  A.  full  and  minute  index  was  added  to  the  second 
volume  of  the  former  work.  This  I have  repeated  at  the  end  of 
the  first  volume  of  the  new  work,  and  have  made  a new  index  for 
the  second  volume.  It  seemed  to  me  that  this  w^ould  be  more 
convenient  to  readers  than  it  would  be  to  incorporate  the  former 
index  with  the  new  one. 

It  may  be  well  to  explain  what  I understand  to  be  the  dis- 
tinction between  Constitutional  History  and  Constitutional  Law. 
As  I use  these  terms  I include  in  Constitutional  History  those 
events  and  that  public  action  which  have  shaped  the  text  of  a 
written  Constitution,  or  which  should  be  regarded  in  its  interpre- 
tation. Constitutional  Law  is  that  body  of  jurisprudence  which 
includes  the  text  of  the  Constitution  and  the  constructions  which  it 
has  received  from  those  whose  public  duty  it  has  been  fiom  time 
to  time  to  interpret  its  meaning  and  application.  But  the  teims 
Constitutional  History  and  Constitutional  Law  have  in  this  coun- 
try a signification  peculiar  to  ourselves.  In  other  countries,^  as, 
for  example,  in  England,  where  there  is  no  written  Constitution, 
and  where  everything  depends  u])on  the  will  of  the  legislative 
power.  Constitutional  History  is  the  history  of  the  legislation  or 
public  action  which  has  given  form  and  fixture  to  the  powers  of 
the  government  and  the  rights  of  individuals;  and  there,  too. 
Constitutional  Law  is  the  existing  system  of  public  and  private 
rights,  which  remain  as  they  are  until  Parliament,  consisting  of 
the  two  Houses  of  the  legislature,  and  the  sovereign  in  her  or  his 
legislative  capacity,  see  fit  to  change  them. 


PREFACE. 


V 


AVitli  us,  the  bearing  of  Constitutional  history  upon  any  doc- 
trine or  proposition  of  Constitutional  Law  consists  in  the  influence 
which  public  events  or  public  action  ought  to  have  on  the  inter- 
])retatioii  of  a written  text.  First  in  importance  stand  the  pro- 
ceedings which  attended  the  formation  and  adoption  of  the  Con- 
stitution, Jhese  are  described  in  the  first  volume  of  tlie  present 
history.  Next  in  importance  come  the  interpretations  which  were 
put  upon  the  text  by  the  legislative  department  which  was  first 
charged  with  the  duty  of  enacting  the  organic  laws  necessary  to 
put  the  government  in  execution ; the  interpretations  made  by  the 
executive,  during  Washington’s  administration ; together  with  the 
amendments  proposed  by  the  First  Congress,  and  adopted  by  the 
states  in  1789-1791,  All  of  this  Constitutional  History,  which  I 
have  endeavored  to  embody  in  the  second  volume  of  the  present 
work,  preceded  what  I may  call  the  era  of  judicial  interpretation ; 
by  Avhich  I mean  the  earlier  interpretations  given  to  the  Constitu- 
tion by  the  Judiciary.  Next  in  rank  of  importance  are  the  later 
interpretations  of  all  the  three  departments  of  the  government. 

The  reasons  why  the  first  constructions  and  applications  of  the 
Constitution  are  of  superior  importance,  those  who  first 

had  to  administer  the  new  government  belonged  to  the  generation 
which  framed  and  established  it,  and  especially  be^^se  many  of 
them  were  actively  engaged  in  framing  and  establishing,  or  in  op- 
posing and  amending  it,  I have  endeavored  to  keep  distinct  what 
occurred  before  the  Civil  War,  and  what  happened  afterwards,  so 
as  to  explain  the  trying  period  when  further  amendments  were 
made  necessary,  or  were  believed  to  be  so.  I have  included  in 
this  later  exposition  those  judicial  constructions  only  which  have 
related  to  the  amendments,  the  history  of  which  has  been  de- 
scribed, and  a few  of  those  which  grew  out  of  the  Civil  War  or 
the  measures  that  were  adopted  in  its  prosecution.  These  ex- 
planations will  show  why,  in  writing  the  second  volume  of  the 
present  history,  I have  not  followed  a strictly  chronological  order. 
By  this  I do  not  mean  that  time  has  been  disregarded.  The  time 
or  times  when  public  events  or  public  action  have  affected  the 
Constitutional  status  of  the  country  are  of  the  utmost  conse- 
quence ; and  in  a work  designed  to  exhibit  the  influence  of  public 


VI 


PREFACE. 


events  and  public  action  upon  the  shape  and  meaning  of  a written 
Constitution,  dates  and  contemporaneous  occurrences  are  to  be 
carefully  noted.  But  I have  deemed  it  best  to  group  the  subjects 
on  which  I have  written,  and  have  not  attempted  a narrative  such 
as  is  usually  found  in  general  histories  of  a country,  in  which  the 
reigns  of  different  princes  or  the  succession  of  different  dynasties 
have  followed  each  other.  Ours  is  one  dynasty,  one  reign,  one 
national  continuity,  one  unbroken  national  existence,  under  the 
Constitution  established  in  1788.  The  continuity  of  our  national 
existence  might  have  been  broken,  and  was  in  imminent  danger 
of  being  broken,  between  1860  and  1865.  But  happily  that  dan- 
ger was  averted.  We  have  settled  the  one  perilous  question  that 
threatened  our  happiness  and  the  permanency  of  our  system  of 
government.  It  remains  for  us  to  enjoy  what  we  have  preserved. 
A retrospect  of  the  causes  and  events  which  made  our  Constitu- 
tion a subject  of  altercation  rather  than  enjoyment  is  now  useful, 
not  for  the  renewal  of  controversies,  but  for  an  enlightened  per- 
ception of  their  nature  and  of  the  truths  in  which  they  have  ter- 
minated. History  is  valuable  for  the  warnings  or  the  instructions 
which  the  past  gives  to  the  present  and  the  future ; and  every 
stage  of  our  Constitutional  history  is  marked  by  such  warnings 
and  such  instructions. 

Gibbon,  when  announcing  the  continuation  of  his  “History 
of  the  Decline  and  Fall  of  the  Homan  Empire,”  said,  “ An  author 
easily  persuades  himself  that  the  public  opinion  is  still  favorable 
to  his  labors.”  Although  a full  generation  has  passed  since  I 
published  my  original  work,  I have  had  no  reason  to  believe 
that  the  public  has  forgotten  me.  I have  had  many  inquiries 
for  the  reasons  why  I have  so  long  permitted  it  to  remain  out 
of  print.  These  reasons  I have  now  assigned.  Since  my  purpose 
to  reproduce  it  and  to  continue  it  to  a later  period  has  been  made 
known,  encouragement  to  proceed  has  reached  me  from  many  per- 
sons whose  encouragement  is  most  important.  I have  been  in- 
formed by  those  who  ought  to  know  that  in  our  higher  schools  of 
learning  there  is  an  awakened  interest  in  American  Constitutional 
history  ; that  the  young  men  of  the  present  day  are  seeking  for  in- 
formation on  this  subject  much  more  than  those  who  immediately 


P liEFACE. 


Vll 


preceded  them.  Among  those  who  are  already  on  the  active  stage 
of  life,  1 can  observe  the  same  tendency. 

l^erha})s  some  future  Gibbon,  centuries  hence,  will  write  the 
Decline  and  Fall  of  the  American  Republic.  J^et  us  hope,  how- 
ever, that  in  the  meantime  something  will  have  been  done  for  the 
welfare  of  mankind ; that  some  still  greater  improvements  will 
have  been  made  in  the  science  of  government ; and  that  if  the  de- 
cadence of  our  institutions  must  be  recorded,  the  way  will  have 
been  prepared  for  better  ones  to  take  their  place. 

New  York,  January^  1889. 


CONTENTS  OF  VOL.  I 


CHAPTER  I. 

Organization  of  the  First  Continental  Congress. — Origin  of 
THE  Union Page  1 


CHAPTER  II. 

The  Second  Continental  Congress. — Formation  and  Character 
OF  THE  Revolutionary  Government. — Appointment  of  a Com- 
mander-in-Chief. — First  Army  of  the  Revolution  . . 18 

CHAPTER  HI. 

Continuance  of  the  Revolutionary  Government. — Declaration 
of  Independence. — Preparations  for  a New  Government. — 
Formation  of  the  Continental  Army 34 

't 

CHAPTER  IV. 

Consequences  of  the  Declaration  of  Independence.  — Reor- 
ganization OF  THE  Continental  Army. — Flight  of  the  Con- 
gress FROM  Philadelphia. — Plan  of  the  Confederation  Pro- 
posed   62 

CHAPTER  V. 

Adoption  of  the  Articles  of  Confederation. — Cessions  of  West- 
ern Territory. — First  Political  Union  of  the  States  . 86 

CHAPTER  VI. 

Nature  and  Powers  of  the  Confederation 98 


X 


CONTENTS  OF  YOL.  I. 


CHAPTER  VII. 

Requisition?^. — Claims  of  the  Army. — Newburgh  Addresses. 
Peace  Proclaimed. — The  Army  Disbanded  . . . Page  104 

CHAPTER  VIII. 

Financial  Difficulties  of  the  Confederation.— Revolutionary 
Debt.— Revenue  System  of  1783  

CHAPTER  1X^4 

/Opinions  and  Efforts  of  Washington  and  of  Hamilton.  De- 

V CLINE  OF  THE  CONFEDERATION 

CHAPTER  xM 

Duties  ajiu  Necessities  op  Congress.  — Requisitions  on  the 
States. — Revenue  System  of  1783  


CHAPTER  XI. 

Infractions  op  the  Treaty^  of  Peace 

CHAPTER  XII. 

No  Security  Afforded  by  the  Confederation  to  the  State 
Governments.— Shays’s  Rebellion  in  Massachusetts,  and  its 
Kindred  Disturbances 

CHAPTER  XIII. 

Origin  and  Necessity  of  the  Power  to  Regulate  Commerce.  186 

CHAPTER  XIV. 

The  Public  Lands.— Government  of  the  Northwestern  Terri- 
tory.—Threatened  Loss  OF  THE  Western  Settlements.  196 

CHAPTER  Xi^ 

Decay  and  Failure  of  the  Confederation.- Progress  of  Opin- 
ion—Steps  AVHICII  LED  TO  THE  CONVENTION  OF  1787.— INFLU- 
ENCE AND  Exertions  of  Hamilton.-Meeting  op  the  Conven- 


TIOX 


CONTENTS  OF  VOL,  I. 


XI 


CHAPTER  XVI. 

The  Framers  of  the  Constitution. — Washington,  President  of 
THE  Convention Page  257 

CHAPTER  XVII.  ^ 

Preliminary  Considerations. — Organization  of  the  Convention. 
Position  of  the  States. — Rule  op  Investigation  . . 315 


CHAPTER  XVIII. 

Construction  op  a Legislative  Power. — Hasis  of  Representa-  ^ 
TioN,  AND  Rule  of  Suffrage. — Powers  of  Legislation  . 333 


CHAPTER  XIX. 

Construction  of  the  Executive  and  the  Judiciary  . . . 349 


CHAPTER  XX. 

Admission  op  Xew  States. — Guarantee  of  Republican  Govern- 
ment.— Power  op  Amendment. — Oath  to  Support  the  New 
System. — Ratification qko 


CHAPTER  XXL 

Issue  between  the  Virginia  and  the  New  Jersey  Plans. 

Hamilton’s  Propositions.— Madison’s  View  of  the  New  Jer- 
sey Plan 


CHAPTER  XXII. 

Conflict  between  the  National  and  Federal  Systems. — Hivi- 
^siON  OF  THE  Legislature  into  two  Chambers. — Disagreement 
OP  the  States  on  the  Representation  in  the  Two  Branches. 
— Threatened  Dissolution  of  the  Union 386 

CHAPTER  XXIII. 

First  Grand  Compromises  of  the  Constitution. — Population  of 
the  States  Adopted  as  the  Basis  of  Representation  in  the 
House. — Rule  for  Computing  the  Slaves. — Equality  of  Rep- 
resentation OF  the  States  Apopted  for  the  Senate  . . 405 


XU 


CONTENTS  OF  VOL.  I. 


CHAPTER  XXIV. 


Powers  op  Legislation.— Constitution  and  Choice  of  the  Ex- 
ecutive.—Constitution  OP  THE  Judiciary.— Admission  op  New 
States.  — Completion  op  the  Engagements  of  Congress. 
Guarantee  op  Republican  Constitutions.— Oath  to  Support 
the  Constitution.  — Ratification.  — Number  op  Senators. 
Qualifications  for  Office. — Seat  of  Government.  Page  422 


CHAPTER  XXV. 

Report  of  the  Committee  of  Detail.-Construction  op  the  Leg- 
islature.— Time  and  Place  of  its  Meeting 438 


CHAPTER  XXVI. 

Report  of  the  Committee  op  Detail,  continued.— The  Powers 
of  Congress.— The  Grand  Compromises  of  the  Constitution 
kespecting  Commerce,  Exports,  and  the  Slave-Trade  . 494 

CHAPTER  XXVII. 

Report  op  the  Committee  of  Detail,  continued.- The  Remain- 
ing Powers  op  Congress.  — Restraints  upon  Congress  and 
UPON  THE  States 

CHAPTER  XXVIII. 

Report  of  the  Committee  op  Detail,  continued.— Supremacy  of 
the  National  Government.- Definition  and  Punishment  of 

. . . . 553 

Treason 

CHAPTER  XXIX. 

Report  of  the  Committee  of  Detail,  continued.- Election  and 
Powers  of  the  President 

CHAPTER  XXX. 

Report  of  the  Committee  op  Detail,  continued.-Formation  op 

-r-.  . . 5o4 

THE  Judicial  Power 

CHAPTER  XXXI. 

Report  of  the  Committee  of  Detail,  continued. -Effect  of 
Records.— Inter-State  Privileges.— Fugitives  prom  Justice 
ci  ....  GOO 

AND  FROM  SERVICE 


CONTENTS  OF  VOL.  I. 


Xlll 


CIIAPTEli  XXXII. 

Report  of  the  Committee  of  Detail,  concluded.  — Guarantee 
OF  Repup>lican  Government  and  Internal  Tranquillity. — 
Oath  to  Support  the  Constitution. — Mode  of  Amendment. — 
Ratification  and  Estahlisiiment  of  tile  Constitution. — Sign- 
ing BY  the  jVlEMBEiis  OF  THE  CONVENTION  ....  Page  610 

CHAPTER  XXXIII. 

General  Recei^tion  of  the  Constitution. — Hopes  of  a Reunion 
WITH  Great  Britain. — Action  of  the  Congress. — State  of 
Feeling  in  Massachusetts,  New  York,  Virginia,  South  Caro- 
lina, Maryland,  AND  Neav  Hampshire. — Appointment  of  their 
Conventions 623 

CHAPTER  XXXIV. 

Ratifications  of  Delaware,  Pennsylvania,  New  Jersey,  Geor- 
gia, and  Connecticut,  avithout  Objection. — Close  of  the  Year 
I'ZSY. — Beginning  of. the  Year  1788. — Ratification  of  Mas- 
sachusetts, THE  Sixth  State,  with  Propositions  of  Amend- 
ment. — Ratification  of  Mary^land,  without  Objection.  — 
South  Carolina,  the  Eighth  State,  Adopts,  and  Proposes 
Amendments.  641 


CHAPTER  XXXV. 

Ratifications  of  New  Hampshire,  Virginia,  and  New  York,  with 


Proposed  Amendments 661 

CHAPTER  XXXVI. 

Action  of  North  Carolina  and  Rhode  Island  .....  692 

APPENDIX 699 

INDEX  745 


CONSTITUTIONAL  HISTORY 


OF 

THE  UNITED  STATES. 


CHAPTER  I. 

1774-1775. 

Organization  of  the  First  Continental  Congress. — Origin  of 

THE  Union. 

The  thirteen  British  colonies  in  Horth  America,  by  whose  in- 
habitants the  American  Revolution  was  achieved,  ivere,  at  the 
commencement  of  that  struggle,  so  many  separate  communities, 
having,  to  a considerable  extent,  different  political  organizations 
and  different  municipal  laws  ; but  their  various-  populations  spoke 
almost  universally  the  English  language.  These  colonies  were 
Virginia,  Massachusetts,  Hew  Hampshire,  Connecticut,  Rhode 
Island,  Maryland,  Hew  York,  Hew  Jersey,  Pennsylvania,  Dela- 
ware, Horth  Carolina,  South  Carolina,  and  Georgia.  From  the 
times  when  they  were  respectively  settled,  until  the  union  formed 
under  the  necessities  of  a common  cause  at  the  breaking  out  of 
the  Revolution,  they  had  no  political  connection ; but  each  pos- 
sessed a domestic  government  peculiar  to  itself,  derived  directly 
from  the  crown  of  England,  and  more  or  less  under  the  direct 
control  of  the  mother  country. 

The  political  organizations  of  the  colonies  have  been  classed 
by  jurists  and  historians  under  the  three  heads  of  Provincial, 
Proprietary,  and  Charter  governments.  

Hb=-t—  


2 CONSTITUTIONAL  HISTORY. 

To  the  class  of  Provincial  governments  belonged  the  provinces 
of  New  Hampshire,  New  York,  New  Jersey,  Virginia,  the  two  Car- 
olinas,  and  Georgia.  These  had  no  other  written  constitutions,  or 
fundamental  laws,  than  the  commissions  issued  to  the  governors 
appointed  by  the  crown,  explained  by  the  instructions  which  ac- 
companied them.  The  governor,  by  his  commission,  was  made 
the  representative  or  deputy  of  the  king,  and  was  obliged  to  act 
in  conformity  with  the  royal  instructions.  He  was  assisted  by  a 
council,  the  members  of  which,  besides  participating  with  him,  to 
a certain  extent,  in  the  executive  functions  of  the  government, 
constituted  the  upper  house  of  the  provincial  legislature ; and  he 
was  also  authorized  to  summon  a general  assembly  of  represen- 
tatives of  the  freeholders  of  the  province.  The  three  branches 
thus  convened,  consisting  of  the  governor,  the  council,  and  the 
representatives,  constituted  the  provincial  assemblies,  having  the 
power  of  local  legislation,  subject  to  the  ratification  or  disapproval 
of  the  crown.  The  direct  control  of  the  crown  over  these  pro- 
vincial governments  may  also  be  traced  in  the  features,  common 
to  them  all,  by  which  the  governor  had  power  to  suspend  the 
members  of  the  council  from  office,  and,  whenever  vacancies  oc- 
curred, to  appoint  to  those  vacancies,  until  the  pleasure  of  the 
crown  should  be  known ; to  negative  all  the  proceedings  of  the 
assembly,  and  to  prorogue  or  dissolve  it  at  his  pleasure. 

The  Proprietary  governments,  consisting  of  Maryland,  Penn- 
sylvania, and  Delaware,  were  those  in  which  subordinate  powers 
of  legislation  and'  government  had  been  granted  to  certain  indi- 
viduals called  the  proprietaries,  who  appointed  the  governor  and 
authorized  him  to  summon  legislative  assemblies.  The  authority 
of  the  proprietaries,  or  of  the  legislative  bodies  assembled  by  the 
governor,  was  restrained  by  the  condition  that  the  ends  for  ’w  hich 
the  grant  was  made  to  them  by  the  crown  should  be  substantially 
pursued  in  their  legislation,  and  that  nothing  should  be  done,  or 
attempted,  which  might  derogate  from  the  sovereignty  of  the 
mother  country.  In  Maryland,  the  laws  enacted  by  the  proprie- 
tary government  were  not  subject  to  the  direct  control  of  the 
crown  ; but  in  Pennsylvania  and  Delaware  they  were.* 

The  Charter  governments,  consisting,  at  the  period  of  the  Eevo^ 


Story’s  Commentaries  on  the  Constitution,  § 160. 


FIRST  CONTINENTAL  CONGRESS. 


3 


lution,  of  Massachusetts,  Rhode  Island,  and  Connecticut,  may  be 
said,  in  a stricter  sense,  to  have  possessed  written  constitutions  for 
their  general  ])olitical  government.  The  charters,  granted  by  the 
crown,  established  an  organization  of  the  ditferent  (lej)artments 
of  government  similar  to  that  in  the  ])rovincial  governments.  In 
]\Iassachusetts,  after  the  charter  of  William  and  Mary,  granted 
in  1()91,  the  governor  was  appointed  by  the  crown ; the  council 
Avere  chosen  annually  by  the  General  Assembly,  and  the  House 
of  Representatives  by  the  people.  In  Connecticut  and  Rhode 
Island,  the  governor,  council,  and  representatives  were  chosen 
annually  by  the  freemen  of  the  colony.  In  the  charter,  as  well 
as  the  provincial  governments,  the  general  power  of  legislation 
Avas  restrained  by  the  condition  that  the  laAvs  enacted  should 
be,  as  nearly  as  possible,  agreeable  to  the  laws  and  statutes  of 
England. 

One  of  the  principal  causes  Avhich  precipitated  the  Avar  of  the 
Revolution  Avas  the  bloAv  struck  by  Parliament  at  these  charter 
governments,  commencing  Avith  that  of  Massachusetts,  by  an  act 
intended  to  alter  the  constitution  of  that  province  as  it  stood 
upon  the  charter  of  William  and  Mary ; a precedent  Avhich  justly 
alarmed  the  entire  continent,  and  in  its  principle  affected  all  the 
colonies,  since  it  assumed  that  none  of  them  possessed  constitu- 
tional rights  which  could  not  be  altered  or  taken  away  by  an  act 
of  Parliament.  The  ‘‘  Act  for  the  better  regulating  of  the  gov- 
ernment of  the  Province  of  Massachusetts  Bay,”  passed  in  1774, 
Avas  designed  to  create  an  executive  poAver  of  a totally  different 
character  from  that  created  by  the  charter,  and  also  to  remodel 
the  judiciary,  in  order  that  the  laAvs  of  the  imperial  government 
might  be  more  certainly  enforced. 

The  Massachusetts  charter  had  reserved  to  the  king  the  ap- 
pointment of  the  goA^ernor,  lieutenant- go \"ern or,  and  secretary 
of  the  province.  It  vested  in  the  General  Assembly  the  choice  of 
tAventy-eight  councillors,  subject  to  rejection  by  the  governor ; it 
gave  to  the  governor,  with  the  advice  and  consent  of  the  council, 
the  appointment  of  all  military  and  judicial  officers,  and  to  the 
tAvo  houses  of  the  legislature  the  appointment  of  all  other  civil 
officers,  with  a right  of  negative  by  the  governor.  The  new  law 
vested  the  appointment  of  councillors,  judges,  and  magistrates  of 
all  kinds,  in  the  croAvn,  and  in  some  cases  in  the  governor,  and 


4 


CONSTITUTIONAL  HISTORY. 


made  tliem  all  removable  at  the  pleasure  of  the  crown.  A change 
so  radical  as  this,  in  the  constitution  of  a people  long  accustomed 
to  regard  their  charter  as  a compact  between  themselves  and  the 
crown,  could  not  but  lead  to  the  most  serious  consequences. 

The  statements  which  have  now  been  made  are  sufficient  to 
remind  the  reader  of  the  important  fact  that,  at  the  commence- 
ment of  the  Eevolution,  there  existed,  and  had  long  existed,  in 
all  the  colonies,  local  legislatures,  one  branch  of  which  was  com- 
posed of  representatives  chosen  directly  by  the  people,  accustomed 
to  the  transaction  of  public  business,  and  being  in  fact  the  real 
organs  of  the  popular  will.  These  bodies,  by  virtue  of  their  re- 
lation to  the  people,  were,  in  many  instances,  the  bodies  which 
took  the  initiatory  steps  for  the  organization  of  the  first  national 
or  Continental  Congress,  when  it  became  necessary  for  the  colonies 
to  unite  in  the  common  purpose  of  resistance  to  the  mother  coun- 
ts v.  But  it  should  be  again  stated,  before  we  attend  to  the  steps 
thus  taken,  that  the  colonies  had  no  direct  political  connection 
with  each  other  before  the  Eevolution  commenced,  but  that  each 
was  a distinct  community,  with  its  own  separate  political  organi- 
zation, and  without  any  power  of  legislation  for  any  but  its  own 
inhabitants  ; that,  as  political  communities,  and  upon  the  prin- 
ciples of  their  organizations,  they  possessed  no  power  of  forming 
any  union  among  themselves,  for  any  purpose  whatever,  without 
the  sanction  of  the  crown  or  Parliament  of  England.'  But  the 

^ That  a union  of  the  colonies  into  one  general  government,  for  any  purpose, 
could  not  take  place  without  tlie  sanction  of  Parliament,  was  always  assumed 
in  both  countries.  The  sole  instance  in  which  a plan  of  union  was  publicly 
proposed  and  acted  upon,  before  the  Revolution,  was  in  1753-4,  when  the  Board 
of  Trade  sent  instructions  to  the  Governor  of  New  York  to  make  a treaty  with 
the  Six  Nations  of  Indians;  and  the  other  colonies  were  also  instructed  to  send 
commissioners  to  be  present  at  the  meeting,  so  that  all  the  provinces  might  be 
comprised  in  one  general  treaty,  to  be  made  in  the  king’s  name.  It  was  also 
recommended  by  the  home  government,  that  the  commissioners  at  this  meeting 
should  form  a plan  of  union  among  the  colonies  for  their  mutual  protection  and 
defence  against  the  French.  Twenty-five  commissioners  assembled  at  Albany 
in  May,  1754,  from  New  Hampshire,  Massachusetts,  Rhode  Island,  Connecticut, 
New  York,  Pennsylvania,  and  Maryland.  In  this  body,  a plan  of  union  was 
digested  and  adopted,  which  was  chiefly  the  work  of  Dr.  Franklin.  It  was 
agi-eed  that  an  act  of  Parliament  was  necessary  to  authorize  it  to  be  carried  into 


FIRST  CONTINENTAL  CONGRESS. 


5 


free  and  independent  power  of  forming  a union  among  themselves, 
for  objects  and  purposes  common  to  them  all,  which  was  denied 
to  their  colonial  condition  by  the  princij)les  of  the  English  Con- 
stitution, was  one  of  the  chief  powers  asserted  and  developed  by 
the  Eevolution;  and  they  were  enabled  to  effect  this  union,  as  a 
revolutionary  right  and  measure,  by  the  fortunate  circumstances 
of  their  origin,  which  made  the  people  of  the  different  colonies, 
in  several  important  senses,  one  people.  They  were,  in  the  first 
place,  chiefly  the  descendants  of  Englishmen,  governed  by  the 
laws,  inheriting  the  blood,  and  speaking  the  language  of  the  people 
of  England.  As  British  subjects,  they  had  enjoyed  the  right  of 
dwelling  in  any  of  the  colonies,  without  restraint,  and  of  carrying 
on  trade  from  one  colony  to  another,  under  the  regulation  of  the* 
general  laws  of  the  empire,  without  restriction  by  colonial  legis- 
lation. They  had,  moreover,  common  grievances  to  be  redressed, 
and  a common  independence  to  establish,  if  redress  could  not  be 
obtained ; for  although  the  precise  grounds  of  dispute  with  the 
crown  or  the  Parliament  of  England  had  not  always  been  the 
same  in  all  the  colonies,  yet  when  the  Kevolution  actually  broke 

effect.  It  was  rejected  by  all  the  colonial  assemblies  before  wliich  it  was 
brought,  and  in  England  it  was  not  thought  proper  by  the  Board  of  Trade  to 
recommend  it  to  the  king.  In  America  it  w^as  considered  to  have  too  much  of 
prerogatim  in  it,  and  in  England  to  be  too  democratic.  It  was  a comprehensive 
scheme  of  government,  to  consist  of  a governor-general,  or  president-general, 
who  was  to  be  appointed  and  supported  by  the  crown,  and  a grand  council, 
which  was  to  consist  of  one  member  chosen  by  each  of  the  smaller  colonies,  and 
two  or  more  by  each  of  the  larger.  Its  duties  and  powers  related  chiefly  to  de- 
fence against  external  attacks.  It  was  to  have  a general  treasury,  to  be  supplied 
bv  an  excise  on  certain  articles  of  consumption.  See  the  history  and  details  of 
the  scheme,  in  Sparks’s  Life  and  Works  of  Franklin,  I.  176,  III.  22-55;  Hutch- 
inson’s History  of  Massachusetts,  HI.  23;  Trumbull’s  History  of  Connec- 
ticut, II.  355;  Pitkin’s  History  of  the  United  States,  I.  140-146.  In  1788, 
Franklin  said  of  it : “ Tlie  different  and  contradictory  reasons  of  dislike  to  my 
plan  make  me  suspect  that  it  was  really  the  true  medium ; and  I am  still  of 
opinion  it  would  have  been  happy  for  both  sides,  if  it  had  been  adopted.  The 
colonies  so  united  would  have  been  sufficiently  strong  to  have  defended  them- 
selves; there  would  have  been  no  need  of  troops  from  England;  of  course  the 
subsequent  pretext  for  taxing  America,  and  the  bloody  contest  it  occasioned, 
would  have  been  avoided.  But  such  mistakes  are  not  new;  history  is  full  of 
the  errors  of  states  and  princes.”  (Life  of  Franklin,  by  Sparks,  I.  178.)  We 
may  not  join  in  his  regrets  now. 


6 


CONSTITUTIONAL  HISTORY. 


out,  they  all  stood  in  the  same  attitude  of  resistance  to  the  same 
oppressor,  making  common  cause  with  each  other,  and  resting 
upon  certain  great  principles  of  liberty,  which  had  been  violated 
with  regard  to  many  of  them,  and  with  the  further  violation  of' 
which  all  were  threatened. 

It  was  while  the  controversies  between  the  mother  country 
and  the  colonies  were  drawing  towards  a crisis  that  Dr.  Franklin, 
then  in  England  as  the  political  agent  of  Pennsylvania,  of  Mas- 
sachusetts, and  of  Georgia,  in  an  olRcial  letter  to  the  Massachu- 
setts Assembly,  dated  July  Tth,  1773,  recommended  the  assembling 
of  a general  congress  of  all  the  colonies.  As  the  strength  of  an 
empire,”  said  he,  “ depends  not  only  on  the  union  of  its  parts,  but 
on  their  readiness  for  united  exertion  of  their  common  force ; and 
as  the  discussion  of  rights  may  seem  unseasonable  in  the  com- 
mencement of  actual  w^ar,  and  the  delay  it  might  occasion  be  prej- 
udicial to  the  common  w^elfare ; as  likewise  the  refusal  of  one  or  a 
few  colonies  would  not  be  so  much  regarded,  if  the  others  granted 
liberally,  which  perhaps  by  various  artifices  and  motives  they 
might  be  prevailed  on  to  do ; and  as  this  want  of  concert  would 
defeat  the  expectation  of  general  redress,  that  might  otherwise  be 
justly  formed ; perhaps  it  w^ould  be  best  and  fairest  for  the  colo- 
nies, in  a general  congress  now  in  peace  to  be  assembled,  or  by 
means  of  the  correspondence  lately  proposed,  after  a full  and  sol- 
emn assertion  and  declaration  of  their  rights,  to  engage  firmly 
with  each  other  that  they  will  never  grant  aids  to  the  crown  in 
any  general  war  till  those  rights  are  recognized  by  the  king  and 
both  houses  of  Parliament ; communicating  at  the  same  time  to 
the  crown  this  their  resolution.  Such  a step  I imagine  will  bring 
the  dispute  to  a crisis.” ' 

1 It  is  not  certain  by  whom  the  first  suggestion  of  a Continental  Congress  was 
made.  Thomas  Cushing,  Speaker  of  the  Massaehu setts  Assembly,  and  a corre- 
spondent of  Dr.  Franklin,  appears  to  have  expressed  to  him  the  opinion,  previ- 
ously to  the  date  of  Franklin’s  official  letter  quoted  in  the  text,  that  a congress 
would  grow  out  of  the  eommittees  of  correspondence  which  had  l)een  recom- 
mended by  the  Virginia  House  of  Burgesses.  But  Mr.  Sparks  thinks  that  no 
other  direct  and  public  recommendation  of  the  measure  can  be  found  before  the 
date  of  Franklin’s  letter  to  the  Massachusetts  Assembly.  Sparks’s  Life  of 
Franklin,  I.  350,  note.  In  the  early  part  of  the  year  1774  the  necessity  of  such 


FIRST  CONTINENTAL  CONGRESS.  7 

The  first  actual  step  towards  this  measure  was  taken  in  Vir- 
ginia. A new  House  of  Burgesses  had  been  suminoued  l>y  the 
royal  governor  to  meet  in  May,  1774.  Soon  after  the  members 
had  assembled  at  Williamsburg  they  received  the  news  that,  by 
an  act  of  Parliament,  the  port  of  Boston  was  to  be  closed  on  the 
first  day  of  the  succeeding  June,  and  that  other  disabilities  Avere 
to  be  inflicted  on  that  town.  They  immediately  passed  an  order, 
setting  apart  the  first  day  of  June  as  a day  of  fasting,  humilia- 
tion, and  prayer,  “ to  implore  the  Divine  interposition  for  avert- 
ing the  heavy  calamity  which  threatened  destruction  to  their  civil 
rights  and  the  evils  of  civil  war,  and  to  give  them  one  heart  and 
one  mind  firmly  to  oppose,  by  all  just  and  proper  means,  every  in- 
jury to  American  rights.”  Thereupon  the  governor  dissolved  the 
House.  But  the  members  immediately  assembled  at  another  place 
of  meeting,  and,  having  organized  themselves  as  a committee,  drew 
up  and  subscribed  an  association,  in  which  they  declared  that  the 
interests  of  all  the  colonies  Avere  equally  concerned  in  the  late 
doings  of  Parliament,  and  advised  the  local  Committee  of  Corre- 
spondence  to  consult  Avith  the  committees  of  the  other  colonies  on 
the  expediency  of  holding  a general  Continental  Congress.  Pur- 
suant to  these  recommendations,  a popular  convention  Avas  held 
at  Williamsburg,  on  the  1st  of  August,  Avhich  appointed  seven 
persons  as  delegates  to  reprdfeent  the  people  of  Virginia  in  a gen- 
eral Congress  to  be  held  at  Philadelphia  in  the  September  fol- 
io AAnng.' 

The  Massachusetts  Assembly  met  on  the  last  of  May,  and,  after 
negativing  thirteen  of  the  councillors.  Governor  Gage  adjourned 
the  assembly  to  meet  at  Salem  on  the  7th  of  June.  When  they 
came  together  at  that  place  the  House  of  Representatives  passed  a 
resolve,  declaring  a meeting  of  committees  from  the  several  colo- 
nies on  the  continent  to  be  highly  expedient  and  necessary,  to  de- 
liberate and  determine  upon  proper  measures  to  be  recommended 
to  all  the  colonies  for  the  recovery  and  establishment  of  their  just 


a congress  began  to  be  popularly  felt  throughout  all  the  colonies.  Sparks’s 
Washington,  II.  326. 

1 These  delegates  were  Peyton  Randolph,  Richard  Henry  Lee,  George  Wash- 
ington, Patrick  Henry,  Richard  Bland,  Benjamin  Harrison,  and  Edmund  Pen- 
dleton. 


8 


CONSTITUTIONAL  HISTORY. 


rights  and  liberties,  civil  and  religious,  and  for  the  restoration  of 
union  and  harmony  with  Great  Britain.  They  then  appointed 
live  delegates ' to  meet  the  representatives  of  the  other  colonies  in 
congress  at  Philadelphia  in  the  succeeding  September. 

These  examples  were  at  once  followed  by  the  other  colonies. 
In  some  of  them  the  delegates  to  the  Continental  Congress  were 
appointed  by  the  popular  branch  of  the  legislature,  acting  for  and 
in  behalf  of  the  people ; in  others  they  were  appointed  by  conven- 
tions of  the  people  called  for  the  express  purpose,  or  by  commit- 
tees duly  authorized  to  make  the  appointment."*  The  Congress, 
styling  themselves  ^Hhe  delegates  appointed  by  the  good  people 
of  these  colonies,”  assembled  at  Philadelphia  on  the  5th  of  Sep- 
tember, 1774,  and  organized  themselves  as  a deliberative  body  by 
the  choice  of  officers  and  the  adoption  of  rules  of  proceeding. 
Peyton  Kandolph,  of  Virginia,  was  elected  President,  and  Charles 
Thompson,  of  Pennsylvania,  Secretary,  of  the  Congress. 

'No  precedent  existed  for  the  mode  of  action  to  be  adopted  by 


^ Thomas  Cushing,  Samuel  Adams,  Robert  Treat  Paine,  James  Bowdoin,  and 
John  Adams. 

2 The  delegates  in  tlie  Congress  of  1774  from  New  Hampshire  were  appointed 
by  a Convention  of  Deputies  chosen  by  the  towns,  and  received  tlieir  credentials 
from  that  convention.  In  Rhode  Island  they  were  appointed  by  the  General 
Assembly  and  commissioned  by  the  governor.  In  Connecticut  they  were  ap- 
pointed and  instructed  by  the  Committee  of  Correspondence  for  the  Colony,  act- 
ing under  authority  conferred  by  the  House  of  Representatives.  In  New  York 
the  mode  of  appointment  was  various.  In  the  city  and  county  of  New  York  the 
delegates  were  elected  by  popular  vote  taken  in  seven  wards.  The  same  per- 
sons were  also  appointed  to  act  for  the  counties  of  West  Chester,  Albany,  and 
Duchess,  by  the  respective  committees  of  those  counties ; and  another  person 
was  appointed  in  the  same  manner  for  the  county  of  Suffolk.  The  New  York 
delegates  received  no  other  instructions  than  those  implied  in  the  certificates, 
“ to  attend  the  Congress  and  to  represent  ” the  county  designated.  In  New 
Jersey  the  delegates  were  appointed  by  the  committees  of  counties,  and  were 
simply  instructed  “to  represent”  the  colony.  In  Pennsylvania  they  were  ap- 
pointed and  instructed  by  the  House  of  Assembly.  In  the  counties  of  New  Cas- 
tle, Kent,  and  Sussex-on-Delaware  delegates  were  elected  by  a convention  of  the 
freemen  assembled  in  pursuance\of  circular  letters  from  the  Speaker  of  the  House 
of  Assembly.  In  Maryland  the  Appointment  was  by  committees  of  the  counties. 
In  Virginia  it  was  by  a popular  convention  of  the  whole  colony.  In  South  Car- 
olina it  was  by  the  House  of  Commons.  Georgia  was  not  represented  in  this 
Congress. 


FIRST  CONTINENTAL  CONGRESS.  <) 

this  assembly.  There  was,  therefore,  at  the  outset,  no  established 
])rinciple  wliich  miglit  determine  the  nature  of  the  union ; but 
that  union  was  to  be  shaped  by  the  new  circumstances  ^nd  rela-  ^ 
tions  in  which  the  Congress  found  itself  placed.  There  had  been 
no  ireneral  concert  among  the  different  colonies  as  to  the  numbers 
of  delegates,  or,  as  they  were  called  in  many  of  the  proceedings, 

“ committees  ” of  the  colonies,  to  be  sent  to  the  meeting  at  Phila- 
delphia. On  the  first  day  of  their  assembling  Pennsylvania  and 
Virginia  had  each  six  delegates  in  attendance;  New  York  had 
five ; Massachusetts,  New  Jersey,  and  South  Carolina  had  four 
each;  Connecticut  had  three;  New  Hampshire,  Ehode  Island, 
Delaware,  and  Maryland  had  two  each.  The  delegates  from 
North  Carolina  did  not  arrive  until  the  llth.' 

As  soon  as  the  choice  of  officers  had  taken  place,'^  the  method 
of  voting  presented  itself  as  the  first  thing  to  b6  determined  ; and 
the  difficulties  arising  from  the  inequalities  between  the  colonies 
in  respect  to  actual  representation,  population,  and  wealth,  had  to 
be  encountered  upon  the  threshold.  Insuperable  obstacles  stood 
in  the  way  of  the  adoption  of  interests  as  the  basis  of  votes.  The 
weight  of  a colony  could  not  be  ascertained  by  the  numbers  of  its 
inhabitants,  the  amount  of  their  wealth,  the  extent  of  their  trade, 
or  by  any  ratio  to  be  compounded  of  all  these  elements,  for  no 
authentic  evidence  existed  from  which  such  data  could  be  taken.^ 
As  it  was  apparent,  however,  that  some  colonies  had  a larger  pro- 
portion of  members  present  than  others,  relatively  to  their  size 
and  importance,  it  was  thought  to  be  equally  objectionable  to 
adopt  the  method  of  voting  by  polls.  In  these  circumstances  the 
opinion  was  advanced  that  the  colonial  governments  were  at  an 
end ; that  all  America  was  thrown  into  one  mass,  and  was  in  a 
state  of  nature ; and,  consequently,  that  the  people  ought  to  be 
considered  as  represented  in  the  Congress  according  to  their  num- 
bers, by  the  delegations  actually  present. “ Upon  this  principle 
the  voting  should  have  been  by  polls. 


^ Journals,  I.  1,  12. 

’ The  president  and  secretary  appear  to  have  been  chosen  xti'ta  voce^  or  by  a 
hand  vote,  John  Adams’s  Works,  II.  365.  ® Adams,  II.  366. 

* This  opinion,  we  are  told  by  Mr.  Adams,  was  advanced  by  Patrick  Henry. 
See  notes  of  the  debate,  in  Adams,  II.  366,  368. 


10 


CONSTITUTIONAL  HISTORY. 


But  neither  the  circumstances  under  which  they  were  assem- 
bled, nor  the  dispositions  of  the  members,  permitted  an  adop- 
tion of  tTie  theory  that  all  government  was  at  an  end,  or  that  the 
boundaries  of  the  colonies  were  effaced.  The  Congress  had  not 
assembled  as  the  representatives  of  a people  in  a state  of  nature, 
but  as  the  committees  of  different  colonies,  which  had  not  yet 
severed  themselves  from  the  parent  state.  They  had  been  clothed 
with  no  legislative  or  coercive  authority,  even  of  a revolutionary 
nature ; compliance  with  their  resolves  would  follow  only  on  con- 
viction of  the  utility  of  their  measures ; and  all  their  resolves  and 
all  their  measures  were,  by  the  express  terms  of  many  of  their 
credentials,  limited  to  the  restoration  of  union  and  harmony  with 
Great  Britain,  which  would  of  course  leave  the  colonies  in  their 
colonial  state.  The  people  of  the  continent,  therefore,  as  a peo- 
ple in  the  state  of  nature,  or  even  in  a national  existence  as  one 
people  standing  in  a revolutionary  attitude,  had  not  then  come 
into  being. 

The  nature  of  the  questions,  too,  Avhich  they  were  to  discuss, 
and  of  the  measures  which  they  were  to  adopt,  were  to  be  consid- 
ered in  determining  by  what  method  of  voting  those  questions 
and  measures  should  be  decided.  The  Congress  had  been  called 
to  secure  the  rhjJds  of  the  colonies.  'VYhat  were  those  rights? 
By  what  standard  were  they  to  be  ascertained  ? By  the  law  of 
nature,  or  by  the  principles  of  the  English  Constitution,  or  by  the 
charters  and  fundamental  laws  of  the  colonies,  regarded  as  com- 
pacts between  the  crown  and  the  people,  or  by  all  of  these  com- 
bined ? If  the  law  of  nature  alone  was  to  determine  their  rights, 
then  all  allegiance  to  the  British  crown  was  to  be  regarded  as  at 
an  end.  If  the  principles  of  the  English  Constitution,  or  the  char- 
ters, were  to  be  the  standard,  the  law  of  nature  must  be  excluded 
from  consideration.  This  exclusion  would  of  necessity  narrow  the 
ground,  and  deprive  them  of  a resource  to  which  Parliament  might 
at  last  compel  them  to  look.'  In  order,  therefore,  to  leave  the 
whole  field  open  for  consideration,  and  at  the  same  timo  to  avoid 
committing  themselves  to  principles  irreconcilable  with,  the  pres- 
ervation of  allegiance  and  their  colonial  relation  to  Greajt  Britain, 

1 See  the  very  interesting  notes  of  their  debates  in  Adams’s  Works,  II.  36G, 
370-377. 


FIRST  CONTINENTAL  CONGRESS. 


11 


it  was  necessary  to  consider  themselves  as  an  assGin])ly  of  com- 
mittees from  tlie  dilferent  colonies,  in  which  each  colony  should 
have  one  voice,  through  the  delegates  whom  it  had  sent  to  repre- 
sent and  act  for  it.  But,  as  if  foreseeing  the  time  when  population 
would  become  of  necessity  the  basis  of  congressional  power,  when 
the  authority  of  Parliament  would  have  given  place  to  a system 
of  American  continental  legislation,  they  inserted,  in  the  resolve 
determining  that  each  colony  should  have  one  vote,  a caution  that 
would  prevent  its  being  drawn  into  precedent.  They  declared,  as 
the  reason  for  the  course  which  they  adopted,  that  the  Congress 
were  not  possessed  of,  able  to-procure,  the  proper  materials  for 
ascertaining  the  importance  off  each  colony.' 

It  appears,  therefore,  very  clear  that  an  examination  of  the 
relations  of  the  first  Congress  to  the  colonies  which  instituted  it 
will  not  enable  us  to  assign  to  it  the  character  of  a government. 
Its  members  were  not  elected  for  the  express  purpose  of  making  a 
revolution.  It  was  an  assembly  convened  from  separate  colonies, 
each  of  which  had  causes  of  complaint  against  the  imperial  govern- 
ment to  which  it  acknowledged  its  allegiance  to  be  due,  and  each  of 
which  reo-arded  it  as  essential  to  its  own  interests  to  make  common 
cause  with  the  others,  for  thejDurpose  of  obtaining  redress  of  its 
own  grievances.  The  idea  of  separating  themselves  from  the  moth- 
er country  had  not  been  generally  entertained  by  the  people  of  any 
of  the  colonies.  All  their  public  proceedings,  from  the  commence- 
ment of  the  disputes  down  to  the  election  of  delegates  to  the  first 
Congress,  including  the  instructions  given  to  those  delegates,  prove, 
as  we  have  seen,  that  they  looked  for  refiress  and  relief  to  means 
which  they  regarded  as  entirely  consistent  with  the  principles  of 
the  British  Constitution." 


1 Journals,  I.  10. 

2 The  instructions  embraced  in  the  credentials  of  the  delegates  to  the  first 
Congress  were  as  follows:  New  Hampshire  — “to  devise,  consult,  and  adopt 
such  measures  as  may  have  the  most  likely  tendency  to-extricate  the  colonies 
from  their  present  difficulties ; to  secure  and  perpetuate  their  rights,  liberties, 
and  privileges;  and  to  restore  that  peace,  harmony,  and  mutual  confidence 
w'hich  once  happily  subsisted  between  the  parent  country  and  her  colonies.” 
Massachusetts — “ to  deliberate  and  determine  upon  wise  and  proper  meas- 
ures, to  be  by  them  recommended  to  all  the  colonies,  for  the  recovery  and  estab- 
lishment of  their  just  rights  and  liberties,  civil  and  religious,  and  the  restoration 


12 


CONSTITUTIONAL  HISTORY. 


Still,  although  this  Congress  did  not  take  upon  themselves  the 
functions  of  a government,  or  propose  revolution  as  a remedy  for 
the  wrongs  of  their  constituents,  they  regarded  and  st}ded  them- 
selves as  ‘‘the  guardians  of  the  rights  and  liberties  of  the  colo- 
nies ' and  in  that  capacity  they  proceeded  to  declare  the  causes 
of  complaint,  and  to  take  the  necessary  steps  to  obtain  redress, 
in  what  they  believed  to  be  a constitutional  mode.  These  steps, 
however,  although  not  directly  revolutionary,  had  a revolutionary 
tendency. 

On  the  6th  of  September,  1774,  a resolve  was  passed,  that  a 
committee  be  appointed  to  state  the  rights  of  the  colonies  in  gen- 
eral, the  several  instances  in  which  those  rights  had  been  violated 
or  infringed,  and  the  means  most  proper  to  be  pursued  for  obtain- 
ing; a restoration  of  them.  Another  committee  was  ordered  on 

of  union  and  liarmony  between  Great  Britain  and  tlie  colonies,  most  ardently 
desired  by  all  good  men.”  Rhode  Island — “ to  meet  and  join  with  the  other 
commissioners  or  delegates  from  the  other  colonies  in  consulting  upon  proper 
measures  to  obtain  a repeal  of  the  several  acts  of  the  British  Parliament  for  levy- 
ing taxes  upon  his  majesty’s  subjects  in  America  without  their  consent,  and  par- 
ticularly the  commercial  connection  of  the  colonies  with  the  mother  country,  for 
the  relief  of  Boston  and  the  preservation  of  American  liberty.”  Virginia — 
“to  consider  of  the  most  proper  and  effectual  manner  of  so  operating  on  the 
commercial  connection  of  the  colonies  with  the  mother  country  as  to  procure 
redress  for  the  much  injured  Province  of  Massachusetts  Bay,  to  secure  British 
America  from  the  ravage  and  ruin  of  arbitrary  taxes,  and  speedily  to  procure 
the  return  of  that  harmony  and  union  so  beneficial  to  the  whole  empire,  and  so 
ardently  desired  by  all  British  America.”  South  Carolina  — “to  consider  the 
acts  lately  passed  and  bills  depending  in  Parliament  with  regard  to  the  port  of 
Boston  and  Colony  of  Massachusetts  Bay,  which  acts  and  bills,  in  the  precedent 
and  consequences,  affect  the  whole  continent  of  America;  also  the  grievances 
under  which  America  labors  by  reason  of  the  several  acts  of  Parliament  that 
impose  taxes  or  duties  for  raising  a revenue,  and  lay  unnecessary  restraints  and 
burdens  on  trade ; and  of  the  statutes,  parliamentary  acts,  and  royal  instruc- 
tions, which  make  an  invidious  distinction  between  his  majesty’s  subjects  in 
Great  Britain  and  America ; with  full  power  and  authority  to  concert,  agree  to, 
and  effectually  prosecute  such  legal  measures  as,  in  the  opinion  of  the  said  dep- 
uties and  of  the  deputies  so  to  be  assembled,  shall  be  most  likely  to  obtain  a 
repeal  of  the  said  acts  and  a redress  of  these  grievances.”  The  delegates  from 
New  York  and  New  Jersey  were  simply  instructed  “ to  represent”  those  colonies 
in  the  Congress.  Journals,  I.  2-9. 

^ Letter  of  the  Congress  to  Governor  Gage,  October  10,  1774 ; Journals,  I. 
25,  26. 


FIRST  CONTINENTAL  CONGRESS. 


13 


the  same  clay,  to  examine  and  re})ort  the  several  statutes  afTecting 
the  trade  and  manufactui-es  of  the  colonies.  On  the  followinir 
day,  it  was  ordered  that  the  lirst  committee  should  consist  of  two 
members,  and  the  second  of  one  member,  from  each  of  the  colo- 
nies.' Two  (|uestions  i)resented  themselves  to  the  first  of  these 
committees,  and  created  a good  deal  of  embarrassment.  The  first 
was,  whether,  in  stating  the  rights  of  the  colonies,  they  should 
recur  to  the  law  of  nature,  as  well  as  to  the  British  Constitution 
and  the  American  charters  and  grants.  The  second  question 
related  to  the  authority  Avhich  they  should  allow  to  be  in  Parlia- 
ment ; whether  they  should  deny  it  wholly,  or  deny  it  only  as 
to  internal  affairs,  admitting  it  as  to  external  trade ; and  if  the 
latter,  to  what  extent  and  with  what  restrictions.  It  was  soon 
felt  that  this  question  of  the  authority  of  Parliament  was  the 
essence  of  the  whole  controversy.  Some  denied  it  altogether. 
Others  denied  it  as  to  every  species  of  taxation ; Avhile  others 
admitted  it  to  extend  to  the  regulation  of  external  trade,  but 
denied  it  as  to  all  internal  affairs.  The  discussions  had  not  pro- 
ceeded far,  before  it  was  perceived  that  this  subject  of  the  regula- 
tion of  trrale  might  lead  directly  to  the  question  of  the  continuance 
of  the  colonial  relations  Avith  the  mother  country.  For  this  they 
Avere  not  prepared.  It  was  apparent  that  the  right  of  regulating 
the  trade  of  the  Avhole  country,  from  the  local  circumstances  of 
the  colonies  and  their  disconnection  Avith  each  other,  could  not  be 
exercised  by  the  colonies  themselves : it  Avas  thought  that  the 
aid,  assistance,  and  protection  of  the  mother  country  Avere  neces- 
sary to  them ; and  therefore,  as  a proper  equivalent,  that  the  col- 
onies must  admit  the  right  of  regulating  the  trade,  to  some  extent 
and  in  some  mode,  to  be  in  Parliament.  The  alternati\ms  Avere, 
either  to  set  up  an  American  legislature,  that  could  control  and 
regulate  the  trade  of  the  Avhole  country,  or  else  to  give  the  poAver 
to  Parliament.  The  Congress  determined  to  do  the  latter;  sup- 
posing that  they  could  limit  the  admission,  by  denying  that  the 
poAver  extended  to  taxation,  but  ceding  at  the  same  time  the  right 
to  regulate  the  external  trade  of  the  colonies  for  the  common 
benefit  of  the  Avhole  empire.""  They  grounded  this  concession 
upon  the  necessities  of  the  case,”  and  “ the  mutual  interests  of 


^ Additions  were  made  to  it. 


^ Works  of  John  Adams. 


14  CONSTITUTIONAL  HISTORY. 

both  countries ' meaning  by  these  expressions  to  assert  that  all 
legislative  control  over  the  external  and  internal  trade  of  the 
colonies  belonged  of  right  to  the  colonies  themselves,  but,  as  they 
were  part  of  an  empire  for  which  P*arliament  legislated,  it  was 
necessary  that  the  common  legislature  of  the  whole  empire  should 
retain  the  regulation  of  the  external  trade,  excluding  all  power  of 
taxation  for  purposes  of  revenue,  in  order  to  secure  the  benefits 
of  the  trade  of  the  whole  empire  to  the  mother  country. 

The  Congress,  therefore,  after  having  determined  to  confine 
their  statement  to  such  rights  as  had  been  infringed  by  acts  of 
Parliament  since  the  year  1763,  unanimously  adopted  a Decla- 
ration of  Eights,  in  which  they  summed  up  the  grievances  and 
asserted  the  rights  of  the  colonies.  This  document  placed  the 
rights  of  the  colonies  upon  the  laws  of  nature,  the  principles  of 
the  English  Constitution,  and  the  several  charters  or  compacts. 
It  declared  that,  as  the  colonies  were  not,  and  from  their  local 
situation  could  not  be,  represented  in  the  English  Parliament, 
they  were  entitled  to  a free  and  exclusive  power  of  legislation  in 
their  several  provincial  legislatures,  where  their  right  of  repre- 
sentation could  alone  be  preserved,  in  all  cases  of  taxation  and 
internal  polity,  subject  only  to  the  negative  of  their  sovereign,  in 
such  manner  as  had  been  before  accustomed.  At  the  same  time, 
from  the  necessity  of  the  case  and  from  a regard  to  the  mutual 
interests  of  both  countries,  they  cheerfully  consented  to  the  opera- 
tion of  such  acts  of  Parliament  as  were  in  good  faith  limited  to 
the  regulation  of  their  external  commerce,  for  the  purpose  of 
securing  the  commercial  advantages  of  the  whole  to  the  mother 
country,  and  the  commercial  benefit  of  its  respective  members ; 
excluding  every  idea  of  taxation,  internal  and  external,  for  rais- 
ing a revenue  on  the  subjects  in  America,  without  their  consent. 

In  addition  to  this,  they  asserted,  as  great  constitutional  rights 
inherent  in  the  people  of  all  these  colonies,  that  they  were  entitled 
to  all  the  rights,  liberties,  and  immunities  of  free  and  natural-born 
subjects  within  the  realm  of  England ; to  the  common  law  of 
England,  and  especially  to  trial  by  a jury  of  the  vicinage ; to  the 


1 See  the  origin  of  these  expressions  explained,  in  Adams’s  Works,  II.  373- 
375. 

’ Journals,  I.  29. 


FIRST  CONTINENTAL  CONGRESS. 


15 


immunities  and  ])i*ivileges  granted  and  confirmed  to  them  l)y  royal 
charters,  or  secured  by  their  several  codes  of  provincial  laws;  and 
to  the  right  of  ])eaceably  assembling  to  consider  grievances  and 
to  petition  the  king/ 

In  order  to  enforce  tlieir  complaints  upon  the  attention  of  the 
government  and  people  of  Great  Britain,  and  as  the  sole  means 
which  were  open  to  them,  short  of  actual  revolution,  of  coercing 
the  ministry  into  a change  of  measures,  they  resolved  that  after 
the  10th  of  September,  1775,  the  exportation  of  all  merchandise, 
and  every  commodity  whatsoever,  to  Great  Britain,  Ireland,  and 
the  West  Indies,  ought  to  cease,  unless  the  grievances  of  America 
should  be  redressed  before  that  time ; and  that  after  the  first  day 
of  December,  1774,  there  should  be  no  importation  into  British 
America,  from  Great  Britain  or  Ireland,  of  any  goods,  wares,  or 
merchandise  whatever,  or  from  any  other  place,  of  any  such  goods, 
wares,  or  merchandise  as  had  been  exported  from  Great  Britain 
or  Ireland,  and  that  no  such  goods,  wares,  or  merchandise  be  used 
or  purchased/  They  then  prepared  an  association,  or  agreement, 
of  non-importation,  non-exportation,  and  non-consumption,  in  or- 
der, as  far  as  lay  in  their  power,  to  cause  a general  compliance 
with  their  resolves.  This  association  was  subscribed  by  every 
member  of  the  Congress,  and  was  by  them  recommended  for 
adoption  to  the  people  of  the  colonies,  and  was  very  generally 
adopted  and  acted  upon.'  They  resorted  to  this  as  the  most 
speedy,  effectual,  and  peaceable  measure  to  obtain  a redress  of 
the  grievances  of  which  the  colonies  complained ; and  they  entered 
into  the  agreement  on  behalf  of  the  inhabitants  of  the  several  col- 
onies for  which  they  acted. 

’ Journals,  I.  29'f^  They  adopted  also  an  Address  to  the  People  of  Great 
Britain,  and  a Petition  to  the  King,  embodying  similar  principles  with  those 
asserted  in  the  Declaration  of  Rights.  Ibid.  38,  67. 

2 Journals,  I.  21. 

’ This  association,  signed  by  the  delegates  of  Maryland,  Virginia,  North 
Carolina,  and  South  Carolina,  as  well  as  of  the  other  colonies,  contained,  among 
other  things,  the  following  agreement:  “We  will  neither  import  nor  purchase 
any  slaves  imported  after  the  first  day  of  December  next;  after  which  time  we 
will  wholly  discontinue  the  slave-trade,  and  will  neither  be  concerned  in  it  our- 
selves, nor  will  we  hire  our  vessels,  nor  sell  our  commodities  or  manufactures, 
to  those  who  are  concerned  in  it.”  Journals,  I.  33. 


16 


CONSTITUTIONAL  HISTORY. 


This  Congress,  which  sat  from  the  5th  of  September  to  the  26th 
of  October,  1774,  had  thus  made  the  restoration  of  commercial 
intercourse  between  the  colonies  and  other  parts  of  the  British 
empire  to  depend  upon  the  repeal  by  Parliament  of  the  obnoxious 
measures  of  which  they  complained,  and  upon  the  recognition  of 
the  rights  which  they  asserted ; for  although  their  acts  had  not 
the  foundation  of  laws,  the  general  adoption  of  their  recommen- 
dations throughout  the  colonies  gave  them  a power  that  laws 
rarely  possess.  Before  they  adjourned,  they  recommended  that 
another  Congress  of  all  the  colonies  should  be  held  at  Philadelphia 
on  the  10th  of  the  following  May,  unless  their  grievances  were 
redressed  before  that  time,  and  that  the  deputies  to  such  new 
Congress  should  be  chosen  immediately.^ 

But  while  the  Continental  Congress  were  engaged  in  the 
adoption  of  these  measures  of  constitutional  resistance,  and  still 
acknowledged  their  colonial  relations  to  the  imperial  government, 
the  course  of  events  in  Massachusetts  had  put  an  end  to  the  forms 
of  law  and  government  in  that  colony,  as  established  or  upheld  by 
imperial  authority.  This  assembly,  the  last  to  be  held  in  the  prov- 
ince upon  the  principles  of  the  charter,  had  been  dissolved  by  the 
governor’s  proclamation,  at  Salem,  on  the  17th  of  June,  1774.  The 
new  law  for  the  alteration  of  the  government  had  taken  effect ; 
and  in  August  the  governor  received  from  England  a list  of  thirty- 
six  councillors,  who  were  to  be  called  into  office  by  the  king’s 
writ  of  mandaTYius^  instead  of  being  elected,  as  under  the  charter, 
by  the  House  of  Kepresentatives.  Two  thirds  of  the  number  ac- 
cepted their  appointment;  but  popular  indignation, treating  them 
as  enemies  of  their  country,  compelled  the  greater  part  of  them 
to  renounce  their  offices.  The  new  judges  were  prevented  every- 
where from  proceeding  with  the  business  of  the  courts,  which  were 
obstructed  by  assemblies  of  the  people,  Avho  Avould  permit  no  judge 
to  exercise  his  functions,  save  in  accordance  Avith  the  ancient  laAvs 
and  usages  of  the  colony. 

Writs  had  been  issued  for  a neAV  General  Assembly,  Avhich  was 
to  meet  at  Salem  in  October ; but  it  Avas  found  that,  Avhile  the 
old  constitution  had  been  taken  aAvay  by  act  of  Parliament,  the 
new  one  had  been  rejected  by  the  people.  The  compulsory  resig- 


Journals,  I.  56.  Oct.  22,  1774. 


FIRST  CONTINENTAL  CONGRESS. 


17 


nation  of  so  many  of  the  councillors  left  that  body  without  powder, 
and  the  governor  deemed  it  expedient  to  countermand  tlie  writs 
by  proclamation,  and  to  defer  the  holding  of  the  assembly  until 
the  poi)ular  temper  should  have  had  time  to  cool.  Ihit  the  legal- 
itv  of  the  proclamation  was  denied ; the  elections  were  everywhere 
held,  and  the  members  elect  assembled  at  Salem,  pursuant  to  the 
])recepts.  There  they  waited  a day  for  the  governor  to  attend, 
administer  the  oaths,  and  open  the  session  ; but  as  he  did  not 
appear,  they  resolved  themselves  into  a Provincial  Congress,  to 
be  joined  by  others  who  had  been  or  might  be  elected  for  that 
})urpose,  and  adjourned  to  the  town  of  Cambridge,  to  take  into 
consideration  the  affairs  of  the  colony,  in  which  the  regular  and 
established  government  was  now  at  an  end.  Their  acts  were  at 
first  couched  in  the  form  of  recommendations  to  the  people,  whose 
ready  compliance  gave  to  them  the  weight  and  efficacy  of  laws, 
and  there  was  thus  formed  something  like  a new  and  independent 
government.  Under  the  form  of  recommendation  and  advice,  they 
settled  the  militia,  regulated  the  public  revenue,  provided  arms, 
and  prepared  to  resist  the  British  troops.  In  December,  177^, 
they  elected  five  persons  to  represent  the  colony  in  the  Conti- 
nental Congress  that  was  to  assemble  at  Philadelphia  in  the  en- 
suing May.  They  were  met  by  a proclamation,  issued  by  the 
governor,  in  which  their  assembly  was  declared  unlawful,  and 
the  people  were  prohibited,  in  the  king’s  name,  from  complying 
with  their  recommendations,  requisitions,  or  resolves.  Through 
the  mnter,  the  governor  held  the  town  of  Boston,  with  a consid- 
erable body  of  royal  troops,  but  the  rest  of  the  province  generally 
yielded  obedience  to  the  Provincial  Congress.  In  this  posture  of 
affairs,  the  encounter  between  a detachment  of  the  king’s  forces 
and  a body  of  militia,  commonly  called  the  battle  of  Lexington, 
occurred  on  the  19th  of  April,  1775. 


CHAPTEK  II. 

1775-177G. 

The  Second  Continental  Congress. — Formation  and  Character 

OF  THE  PeVOLUTIONARY  GOVERNMENT. APPOINTMENT  OF  A CoM- 

mander-in-Chief. — First  Army  of  tpie  Pevolution. 

A NEW  Continental  Congress  assembled  at  Philadelphia  on  the 
10th  of  May,  1775;  and  in  order  to  observe  the  growth  of  the 
Union,  it  is  necessary  to  trace  the  organization  of  this  body,  and 
to  describe  briefly  the  kind  of  authority  which  it  exercised,  from  ' 
the  time  of  its  assembling  until  the  adoption  and  promulgation  of 
the  Declaration  of  Independence.' 

The  delegates  to  this  Congress  were  chosen  partly  by  the 
popular  branch  of  such  of  the  colonial  legislatures  as  were  in 
session  at  the  time,  the  choice  being  afterwards  ratified  by  con- 
ventions of  the  people ; but  they  were  principally  appointed  by 
conventions  of  the  people  held  in  the  various  colonies.  All  these 
appointments,  except  those  made  in  New  York,  took  place  before 
the  affair  at  Lexington,  and  most  of  them  had  been  made  in  the 

^ Peyton  Randolph,  President  of  the  first  and  re-elected  President  of  the 
second  Congress,  died  very  suddenly  at  Pliiladelphia  on  the  22d  of  October, 
1775,  and  was  succeeded  in  that  office  by  John  Hancock.  Jffr.  Randolph  was 
one  of  the  most  eminent  of  the  Virginia  patriots,  and  an  intimate  friend  of 
Washington.  Richard  Henry  Lee  wrote  to  Washington,  on  the  day  after  his 
death,  that  “ in  him  American  liberty  lost  a powerful  advocate,  and  human 
nature  a sincere  friend.”  He  was  formerly  Attorney-General  of  Virginia,  and 
in  1753  went  to  England  as  agent  of  the  House  of  Burgesses,  to  procure  the 
abolition  of  a fee,  known  as  the  pistole  fee,  which  it  had  been  the  custom  of  the 
governors  of  Virginia  to  charge  for  signing  land  patents,  as  a perquisite  of  their 
office.  He  succeeded  in  getting  tlie  fee  abolished  in  cases  where  the  quantity 
of  land  exceeded  one  hundred  acres.  He  was  commander  of  a company  of 
mounted  volunteers  called  the  Gentlemen  Associators,  who  served  in  the  French 
war.  He  was  President  of  the  Virginia  Convention,  as  well  as  a delegate  in 
Congress,  at  the  time  of  his  death.  Sparks’s  Washington,  II.  58,  101 ; III.  139, 
140;  XII.  420. 


SECOND  CONTINENTAL  CONGRESS. 


11) 


course  of  the  previous  winter.'  The  credentials  of  the  delegates, 
therefore,  while  they  conferred  authority  to  adoiit  ineasutes  to 
recover  U establish  American  rights,  still  expressed,  in  many 
instances,  a desire  for  the  restoration  of  harmony  between  Great 
Britain  and  her  colonies.  In  some  oases,  however,  this  desire  wa^s 
not  expressed,  but  a naked  authority  was  granted,  to  consent  ami 
airvee  to  all  such  measures  as  the  Congress  should  deem  necessary 
and  effectual  to  obtain  a redress  of  American  grievances. 

When  this  Congress  assembled,  it  seems  to  have  been  tacitly 
assumed  that  each  colony  should  continue  to  have  one  vote 
through  its  delegation  actually  present.  All  the  thirteen  colonms 
were  represented  at  the  opening  of  the  session,  except  Geoigia 
and  Rhode  Island.  Three  days  after  the  session  commenced  a 
delegate  appeared  from  the  Parish  of  St.  Johns  in  G^rgm,  who 
was  admitted  to  a seat,  but  did  not  claim  the  right  of/oting  for 
the  colony.  On  the  15th  of  May,  a delegation  from  Rhode  Island 
appeared  and  took  their  seats. 

The  credentials  of  the  delegates  contained  no  limitation  ot 
their  powers  with  respect  to  time,  with  the  exception  of  those 
from  Massachusetts  and  South  Carolina,  whose  authority  was 
not  to  extend  beyond  tl«i  end  of  the  year.  The  Congress  con- 
• tinned  in  session  until  the  1st  of  August,  and  then  adjourned  for 
a recess  to  the  5th  of  September.  When  they  were  again  as- 
sembled, the  delegations  of  several  of  the  colonies  were  renewed, 
with  different  limitations  as  to  their  time  of  service.  Georgia 
sent  a full  delegation,  who  took  their  seats  on  the  13th  of  Septem- 
ber. Still  later,  the  delegations  of  several  other  colonies  were 
renewed  from  time  to  time,  and  this  practice  was  pursued  both 
before  and  after  the  Declaration  of  Independence,  thus  rendering 
the  Congress  a permanent  body. 

1 In  Massachusetts,  Pennsylvania,  and  Maryland  they  were  made  in  Decem- 
ber; in  Connecticut,  in  November;  in  New  Jersey,  in  January;  \ 

lina  in  February;  in  the  Lower  Counties  on  Delaware  and  in  Virginia  in  i la  , 

in  North  Carolina,  on  the  5th  of  April ; and  in  New  York,  f ' 

1 Virginia  renewed  her  deleg.ation  for  one  year  from  the  y = ’ 

ms,  and  Maryland  hers  with  powers  to  act  until  the  25th  ^ ^ ^ ; 

These  new  delegations,  as  well  as  that  of  Georgia,  appeared  on  the  18th  of  bep 
tember  1775.  On  the  16th  of  September  a renewed  delegation  appealed  fioni 
New  Hampshire,  without  limitation  of  time;  Connecticut  sent  a new  delegation 


20 


CONSTITUTIONAL  HISTORY. 

]N^ot withstanding  the  absence  of  any  express  authority  in  their 
instructions  to  enter  upon  revolutionary  measures,  the  circum- 
stances under  which  the  Congress  assembled  placed  it  in  the  posi- 
tion and  cast  upon  it  the  powers  of  a revolutionary  government. 
Civd  war  had  actually  commenced,  and  blood  had  been  shed. 
Whether  this  war  was  to  be  carried  on  for  independence,  or  was 
only  to  be  waged  until  the  British  ministry  could  be  compelled 
to  acknowledge  the  rights  which  the  colonies  had  asserted,  the 
Congress  necessarily  became,  at  once,  the  organ  of  the  common 
resistance  of  the  colonies  against  the  parent  state.  The  first 
thing  which  evinces  its  new  relation  to  the  country  was  the  ap- 
plication made  to  it  by  the  Provincial  Congress  of  Massachusetts, 
immediately  after  the  engagement  at  Lexington,  for  direction  and 
assistance.  While  they  informed  the  Continental  Congress  that 
they  had  proceeded,  at  once,  to  raise  a force  of  thirteen  thousand 
SIX  hundred  men,  and  had  made  proposals  to  the  other  IN'ew  Eng- 
land coionies  to  furnish  men  in  the  same  proportions,  stating  that 
the  sudden  exigency  of  their  affairs  precluded  the  possibility  of 
waiting  for  direction,  they  suggested  that  an  American  army 
ought  forthwith  to  be  raised  for  the  common  cause.’  In  the 
same  manner,  the  city  and  county  of  J^ew  York  applied  for  the 
advice  of  Congress,  how  to  conduct  themselves  with  regard  to 
the  British  troops  expected  in  that  quarter.  These  applications 
caused  the  Congress  at  once  to  resolve  itself  into  a committee  of 
the  whole,  to  take  into  consideration  the  state  of  America." 

These  proceedings  were  soon  followed  by  another  application 
on  the  part  of  the  Provincial  Convention  of  Massachusetts,  set- 
ting forth  the  difficulties  under  which  they  were  laboring  for 
want  of  a regular  form  of  government ; requesting  explicit  advice 
respecting  the  formation  of  a new  government ; and  offering  to 
submit  to  such  a general  plan  as  the  Congress  might  direct  for 
the  colonies,  or  to  endeavor  to  form  such  a government  for  them- 
selves as  should  not  only  promote  their  own  advantage,  but  the 
union  and  interest  of  the  whole  country.' 


on  the  16th  of  January,  1776,  and  Massaclmsetts  did  tlie  same  on  the  31st  of 
January,  for  tlie  year  1776.  The  jDersons  of  the  delegates  were  not  often 
changed.  i journals,  I.  81,  82. 

2 May  15,  1775.  Journals,  1. 162.  3 Journals,  1. 112. 


SECOND  CONTINENTAL  CONGRESS. 


21 


Placed  in  this  manner  at  the  head  of  American  affairs,  the 
Continental  Congress  proceeded,  at  once,  to  put  tlie  country  into 
a state  of  defence,  and  virtually  assumed  a control  over  the  mili- 
tary operations  of  all  the  colonies.  They  appointed  committees 
to  prepare  reports  on  military  measures:  first,  to  recommend 
what  posts  should  be  occupied  in  the  city  of  New  York;  second- 
ly, to  devise  ways  and  means  for  procuring  ammunition  and  mili- 
tary stores ; thirdly,  to  make  an  estimate  of  the  moneys  neces- 
sary to  be  raised ; and  fourthly,  to  prepare  rules  and  regulations 
for  the  government  of  the  army. 

They  then  proceeded  to  create  a continental,  or  national  army. 
To  the  affair  at  Lexington  had  succeeded  the  investment  of  Bos- 
ton, by  an  army  composed  of  regiments  raised  by  the  New  Eng- 
land provinces,  under  the  command  of  General  Ward  of  Massa- 
chusetts. This  army  was  adopted  by  the  Congress ; and,  with 
other  forces  raised  for  the  common  defence,  became  known  and 
designated  as  the  American  Continental  Army.'  Six  companies 
of  riflemen  were  ordered  to  be  immediately  raised  in  Pennsyl- 
vania, two  in  Maryland,  and  two  in  Virginia,  and  directed  to  join 
the  army  near  Boston,  and  to  be  paid  by  the  continent.^ 

On  the  15th  of  June,’  17Y5,  Colonel  George  Washington,  one 
of  the  delegates  in  Congress  from  Virginia,  was  unanimously 
chosen  to  be  commander-in-chief  of  the  continental  forces. Hav- 
ing accepted  the  appointment,  he  received  from  the  Congress  a 
commission,  together  with  a resolution  by  which  they  pledged 
their  lives  and  fortunes  to  maintain,  assist,  and  adhere  to  him  in 
his  great  office,  and  a letter  of  instructions,  in  which  they  charged 
him  to  make  it  his  special  care  ‘‘that  the  liberties  of  America 
receive  no  detriment.”  * In  the  commission  given  to  the  general, 
the  style  of  ''  the  United  Colonies  ” was  for  the  first  time  adopted, 
and  the  defence  of  American  liberty  was  assumed  as  the  great 
abject  of  their  union.^  On  the  21st  of  June,  Washington  left 
Philadelphia  to  take  command  of  the  army,  and  arrived  at  Cam- 
bridge in  Massachusetts  on  the  2d  of  July.  Four  major-generals 


* Form  of  enlistment,  Journals,  1. 118.  ibid. 

= See  note  at  end  of  the  chapter. 

* Secret  Journals  of  Congress,  I.  18 ; Pitkin’s  History  of  the  United  States,  I. 

334,  335.  ® Journals,  I.  122. 


22 


CONSTITUTIONAL  HISTORY. 


and  eight  brigadier-generals  were  also  appointed  by  the  Congress 
for  the  Continental  army ; rules  and  regulations  for  its  govern- 
ment were  adopted  and  proclaimed,  and  the  pay  of  the  officers 
and  privates  was  fixed.' 

The  Congress  also  proceeded,  as  the  legislative  authority  of 
the  United  Colonies,  to  create  a continental  currency,  in  order  to 
defray  the  expenses  of  the  war.  This  was  done  by  issuing  two 
millions  of  dollars,  in  bills  of  credit,  for  the  redemption  of  which 
the  faith  of  the  confederated  colonies  was  pledged.  A quota  of 
this  sum  was  apportioned  to  each  colony,  and  each  colony  was 
made  liable  to  discharge  its  proportion  of  the  whole,  but  the 
United  Colonies  were  obligated  to  pay  any  part  which  either  of 
the  colonies  should  fail  to  discharge."  The  first  of  these  quotas 
was  made  payable  in  four,  the  second  in_five,  the  third^ in  six,  and 
the  fourth  in  seven  years  from  the  last  day  of-Aovember,  1775, 
and  the  provincial  assemblies  or  conventions  were  required,  by 
the  resolves  of  the  Congress,  to  provide  taxes  in  their  respective 
provinces  or  colonies  to  discharge  their  several  quotas."  The 
Congress  also  directed  reprisals  to  be  made,  both  by  pulblic  and 
private  armed  vessels,  against  the  ships  and  goods  of  t*hje  inhabi- 
tants of  Great  Britain  found  on  the  high  seas,  or  between  high 
and  low  water-mark ; this  being  a measure  of  retaliation  against 
an  act  of  Parliament  which  had  authorized  the  capture  and  con- 
demnation of  American  vessels,  and  which  was  considered  equiva- 
lent to  a declaration  of  war.  They  also  threw  open  the  2^orts  of 
the  United  Colonies  to  all  the  world,  except  the  dominions  and 
dependencies  of  Great  Britain. 

Further,  they  established  a general  treasury  department,  by 
the  appointment  of  two  joint  treasurers  of  the  United  Colonies, 
who  were  required  to  give  bonds  for  the  faithful  performance  of 
the  duties  of  their  office,"  and  they  organized  a general  post-office, 
by  the  appointment  of  a postmaster-general  for  the  United  Colo- 
nies, to  hold  his  office  at  Philadelphia,  to  appoint  deputies,  and 
to  establish  a line  of  posts  from  Falmouth  in  Massachusetts  to 


1 June  16-July  4, 1775.  Journals,  1. 112-133. 

= Journals,  I.  125,  June  23, 1775.  Ibid.,  I.  185,  July  29, 1775.  " Ibid. 

* Journals,  I.  186,  July  29,  1775.  Michael  Hillegas  and  George  Clymer,  Es- 
quires, were  elected  treasurers. 


SECOND  CONTINENTAL  CONGRESS.  23 

Savannah  in  Georgia,  witli  such  cross  posts  as  he  should  judge 
proper.' 

The  [)roccedings  of  the  Congress  on  the  subject  of  the  militia 
wei*e,  of  course,  in  the  nature  of  recommendations  only.  They 
advised  the  arming  and  training  of  the  militia  of  New  York,  m 
Mav,  1775,'  and  in  July  they  recommended  to  all  the  colonies  to 
enroll  all  the  able-bodied,  effective  men  among  their  inhabitants, 
between  sixteen  and  fifty  years  of  age,  xind  to  form  them  into 
proper  regiments.^  The  powers  of  the  Congress  to  call  into  the 
field  the  militia  thus  embodied  were  considered  to  be  subject  to 
the  consent  of  those  exercising  the  executive  powers  of  govern- 
ment in  the  colony,  for  the  time  being.“ 

The  relations  of  the  country  with  the  Indian  tribes  and  nations 
were  deemed  to  be  properly  within  the  exclusive  jurisdiction  of 
the  Congress.  Three  departments  of  Indian  Affairs,  northern, 
southern,  and  middle,  with  separate  commissioners  for  each,  were 
therefore  established  in  July,  having  power  to  treat  with  the  In- 
dians in  the  name  and  on  behalf  of  the  United  Colonies.^  Nego- 
tiations and  treaties  were  entered  into  by  these  departments,  and 
all  affairs  with  the  Indians  were  conducted  by  them,  under  the 
direction  and  authority  of  the  Congress.® 

With  regard  to  those  inhabitants  of  the  country  who  adhered 
to  the  royalist  side  of  the  controversy,  the  Congress  of  1775-6  did 
not  assume  and  exercise  directly  the  powers  of  arrest  or  restraint, 
but  left  the  exercise  of  such  powers  to  the  provincial  assemblies, 
or  conventions,  and  committees  of  safety,  in  the  respective  colo- 
nies, with  recommendations  from  time  to  time  as  to  the  mode  in 
which  such  powers  ought  to  be  exercised." 

Besides  all  this,  the  different  applications  made  to  the  Con- 
gress by  the  people  of  Massachusetts,"  of  New  Hampshire,®  of 
Yirginia,'®  and  of  South  Carolina,  concerning  the  proper  exercise 
of  the  powers  of  government  in  those  colonies,  and  the  answers 


1 Journals,  I.  177,  178,  July  26,  1775.  Dr.  Franklin  was  elected  postmaster- 
general  for  one  year  and  until  another  should  be  appointed  by  a future  Congress. 

2 Journals,  1. 106.  ® Ibid.,  1. 170. 

* Ibid.,  I.  285.  ® I5id.,  I.  161, 162. 

« Ibid.,  II.  112, 141, 163,  201,  255,  302,  304.  ^ Ibid.,  I.  213  ; II.  5. 

s June  9, 1775.  ® November  3, 1775.  December  4, 1775. 


24 


CONSTITUTIONAL  HISTORY. 


to  those  applications,  furnish  very  important  illustrations  of  the 
position  in  which  the  Congress  were  placed.  To  the  people  of 
Massachusetts  they  declared  that  no  obedience  was  due  to  the 
act  of  Parliament  for  altering  their  charter,  and  that,  as  the  gov- 
ernor and  lieutenant-governor  would  not  observe  the  directions 
of  that  instrument,  but  had  endeavored  to  subvert  it,  their  offices 
ought  to  be  considered  vacant ; and,  as  the  council  was  actually 
vacant,  in  order  to  conform  as  near  as  might  be  to  the  spirit  and 
substance  of  the  charter,  they  recommended  to  the  Provincial 
Convention  to  write  letters  to  the  inhabitants  of  the  several 
towns  entitled  to  representation  in  the  assembly,  requesting  them 
to  choose  representatives,  and  requesting  the  assembly  when 
chosen  to  elect  councillors ; adding  their  wish  that  these  bodies 
should  exercise  the  powers  of  government  until  a governor  of  the 
king’s  appointment  would  consent  to  govern  the  colony  according 
to  its  charter.’  The  Provincial  Conventions  of  New  Hampshire, 
Virginia,  and  South  Carolina  were  advised  to  call  a full  and  free 
representation  of  the  people,  in  order  to  establish  such  a form  of 
government  as,  in  their  judgment,  would  best  promote  the  happi- 
ness of  the  people  and  most  effectually  secure  peace  and  good 
order  in  their  provinces,  during  the  continuance  of  the  dispute 
with  Great  Britain.'  This  advice  manifestly  contemplated  the 
establishment  of  provisional  governments  only. 

But  between  the  date  of  these  last  proceedings  and  the  follow- 
ing spring  a marked  change  took  place,  both  in  the  expectations 
and  wishes  of  the  people  of  most  of  the  colonies,  with  regard  to 
an  accommodation  of  the  great  controversy.  The  last  petition  of 
the  Congress  to  the  king  was  refused  a hearing  in  Parliament,  as 
emanating  from  an  unlawful  assembly,  in  arms  against  their  sov- 
ereign. In  November  the  town  of  Falmouth,  in  Massachusetts, 
was  bombarded  and  destroyed  by  the  king’s  cruisers.  In  the  lat- 
ter part  of  December  an  act  was  passed  in  Parliament,  prohib- 
iting all  trade  and  commerce  with  the  colonies;  warranting  the 
capture  and  condemnation  of  all  American  vessels,  with  their  car- 
goes, and  authorizing  the  commanders  of  the  king’s  ships  to  com- 
pel the  masters,  crews,  and  other  persons  found  in  such  vessels  to 
enter  the  king’s  service.  The  act  also  empowered  the  king  to  ap- 


* Journals,  I.  115. 


’‘Ibid.,  I.  231,235,  279. 


SECOND  CONTIJ^ENTAL  CONGRESS.  25 

point  commissioners,  with  authority  to  grant  pardon,  on  submis- 
sion, to  individuals  and  to  colonies,  and  after  such  submission  to 
exempt  them  from  its  operation.'  Great  preparations  were  made 
to  reduce  the  colonies  to  the  submission  required  by  this  act, 
and  a part  of  the  troops  that  were  to  be  employed  were  foreign 
mercenaries. 

The  necessity  of  a complete  separation  from  the  mother  coun- 
try, and  the  establishment  of  independent  governments,  had,  there- 
fore, in  the  winter  of  1775-6,  become  apparent  to  the  people  of 
America.  Accordingly,  the  Congress,  asserting  it  to  be  irrecon- 
cilable to  reason  and  good  conscience  for  the  people  of  the  colo- 
nies any  longer  to  take  the  oaths  and  affirmations  necessary  for 
the  support  of  any  government  under  the  crown  of  Great  Britain, 
and  declaring  that  the  exercise  of  every  kind  of  authority  under 
that  crown  ought  to  be  suppressed,  and  a government  of  the  peo- 
ple of  the  colonies  substituted  in  its  place,  recommended  to  the 
respective  assemblies  and  conventions  of  the  colonies,  where  no 
government  sufficient  for  the  exigencies  of  their  affairs  had  been 
already  established,  to  adopt  such  a government  as  in  the  opinion 
of  the  representatives  of  the  people  would  best  conduce  to  the 
happiness  and  safety  of  their  constituents  and  of  America  in 
general,^ 

It  is  apparent,  therefore,  that,  previously  to  the  Declaration  of 
Independence,  the  people  of  the  several  colonies  had  established  a 
national  government  of  a revolutionary  character,  which  under- 
took to  act,  and  did  act,  in  the  name  and  with  the  general  con- 
sent of  the  inhabitants  of  the  country.  This  government  was  es- 
tablished by  the  union,  in  one  body,  of  delegates  representing  the 
people  of  each  colony ; who,  after  they  had  thus  united  for  national 
purposes,  proceeded,  in  their  respective  jurisdictions,  by  means  of 
conventions  and  other  temporary  arrangements,  to  provide  for 
their  domestic  concerns  by  the  establishment  of  local  govern- 
ments, which  should  be  the  successors  of  that  authority  of  the 
British  crown  which  they  had  ‘^everywhere  suppressed.”  The 
fact  that  these  local  or  state  governments  were  not  formed  until 
a union  of  the  people  of  the  different  colonies  for  national  pur- 


^ Annual  Register. 


5 May  10,  1776.  Journals,  II.  166, 174. 


26 


CONSTITUTIONAL  HISTORY. 


poses  had  already  taken  place,  and  until  the  Congress  had  author- 
ized and  recommended  their  establishment,  is  of  great  importance 
in  the  constitutional  history  of  this  country  ; for  it  shows  that  no 
colony,  acting  separately  for  itself,  dissolved  its  own  allegiance  to 
the  British  crown,  but  that  this  allegiance  was  dissolved  by  the 
supreme  authority  of  the  people  of  all  the  colonies,  acting  through 
their  general  agent,  the  Congress,  and  not  only  declaring  that  the 
authority  of  Great  Britain  ought  to  be  suppressed,  but  recom- 
mending that  each  colony  should  supplant  that  authority  by  a 
local  government,  to  be  framed  by  and  for  the  people  of  the 
colony  itself. 

The  powers  exercised  by  the  Congress,  before  the  Declaration 
of  Independence,  show,  therefore,  that  its  functions  were  those  of 
a revolutionary  government.  It  is  a maxim  of  political  science, 
that,  when  such  a government  has  been  instituted  for  the  accom- 
plishment of  great  purposes  of  public  safety,  its  powers  are  lim- 
ited only  by  the  necessities  of  the  case  out  of  which  they  have 
arisen,  and  of  the  objects  for  which  they  were  to  be  exercised. 
When  the  acts  of  such  a government  are  acquiesced  in  by  the 
people,  they  are  presumed  to  have  been  ratified  by  the  people. 
To  the  case  of  our  Kevolution  these  principles  are  strictly  applica- 
ble throughout.  The  Congress  assumed  at  once  the  exercise  of 
all  the  powers  demanded  by  the  public  exigency,  and  their  exer- 
cise of  those  powers  was  fully  acquiesced  in  and  confirmed  by 
the  people.  It  does  not  at  all  detract  from  the  authoritative  char- 
acter of  their  acts,  nor  diminish  the  real  powers  of  the  Kevolu- 
tionary  Congress,  that  it  was  obliged  to  rely  on  local  bodies  for 
the  execution  of  most  of  its  orders,  or  that  it  couched  many  of 
those  orders  in  the  form  of  recommendations.  They  were  com- 
plied with  and  executed,  in  point  of  fact,  by  the  provincial  con- 
gresses, conventions,  and  local  committees  to  such  an  extent  as 
fully  to  confirm  the  revolutionary  powers  of  the  Congress,  as  the 
guardians  of  the  rights  and  liberties  of  the  country.  But  we 
shall  see,  in  the  further  progress  of  the  history  of  the  Congress, 
that  while  its  powers  remained  entirely  revolutionary,  and  were 
consequently  coextensive  with  the  great  national  objects  to  be 
accomplished,  the  want  of  the  proper  machinery  of  civil  govern- 
ment and  of  independent  agents  of  its  own  rendered  it  wholly  in- 
capable of  wielding  those  powers  successfully. 


SECOND  CONTINENTAL  CONGRESS. 


27 


Note  to  21. 

ON  WASHINGTON’S  APPOINTMENT  AS  COMMANDER-IN-CIIIEF. 

Tlie  circumstances  which  attended  the  appointment  of  Washington  to  this 
great  command  are  now  quite  well  known.  He  had  been  a member  of  the 
Congress  of  1774,  and  his  military  experience  and  accomplishments,  and  the 
grea't  resources  of  his  character,  had  caused  his  appointment  on  all  the  commit- 
tees char<Ted  with  making  preparations  for  the  defence  of  the  colonies.  Re- 
turned asti  delegate  from  Virginia  to  the  Congress  of  1775,  his  personal  qualifi- 
cations pointed  him  out  as  tlie  fittest  person  in  the  whole  country  to  be  invested 
with  the  command  of  any  army  which  the  United  Colonies  might  see  fit  to 
raise ; and  it  is  quite  certain  that  there  would  have  been  no  hesitation  about  the 
appointment,  if  some  political  considerations  had  not  been  suggested  as  obsta- 
cles. At  the  moment  when  the  choice  was  to  be  made,  the  scene  of  actual  op- 
erations was  in  Massachusetts,  where  an  army  composed  of  troops  wholly  raised 
by  the  New  England  colonies,  and  under  the  command  of  General  Ward,  of  that 
province,  was  besieging  the  enemy  in  Boston.  This  army  was  to  be  adopted  by 
the  Congress  into  the  service  of  the  continent,  and  serious  doubts  were  enter- 
tained by  some  of  the  members  of  Congress  as  to  the  policy  of  appointing  a 
Southern  general  to  the  command  of  it,  and  a good  deal  of  delicacy  was  felt  on 
account  of  General  Ward,  who,  it  was  thought,  might  consider  himself  injured  V 
by  such  an  appointment.  On  the  other  hand,  there  were  strong  reasons  for  se- 
lecting  a general-in-chief  from  Virginia.  That  colony  had  taken  the  lead,  among 
the  Southern  provinces,  in  the  cause  of  the  continent,  and  the  appointment 
seemed  to  be  due  to  her,  if  it  was  to  be  made  upon  political  considerations. 

The  motives  for  this  policy  were  deemed  sufficient  to  outweigh  the  objections 
arising  from  the  character  and  situation  of  the  army  which  the  general  would, 
in  the  first  instance,  have  to  command.  But,  after  all,  it  cannot  be  doubted  that 
the  pre-eminent  qualifications  of  Washington  had  far  more  weight  with  the  ma- 
jority of  Congress  than  any  dictates  of  mere  policy  betwera  one  part  of  the 
Union  and  another,  or  any  local  jealousies  or  sectional  ambition. 

Mr.  John  Adams,  whose  autobiography  contains  some  statements  on  this 
subject,  speaks  of  the  existence  of  a Southern  party  against  a Northern,  and  a 
jealousy  a^rainst  a New  England  army  under  the  command  of  a New  England 
general,  which,  he  says,  he  discovered  after  the  Congress  had  been  some  time  in 
Lssion,’and  after  the  necessity  of  having  an  army  and  a general  had  become 
a topic  of  conversation  (Works,  II.  415).  In  a letter,  also,  written  by  Mr. 
Adams  in  1822  to  Timothy  Pickering,  he  states  that,  on  the  journey  to  Philadel- 
phia he  and  a partv  of  his  colleagues,  the  delegates  from  Massachusetts  to  this 
Congress,  were  met^at  Frankfort  by  Dr.  Rush,  Mr.  Miffiin,  Mr.  Bayard,  and  others 
of  the  Philadelphia  patriots,  who  desired  a conference  with  them ; that,  in  this 
conference,  the  Philadelphia  gentlemen  strongly  advised  the  Massachusetts  del- 
egates not  to  come  forward  with  bold  measures,  or  to  endeavor  to  take  the  lead  ; 
and  represented  that  Virginia  was  the  most  populous  state  in  the  Union,  proud 


28 


CONSTITUTIONAL  HISTORY. 


of  its  ancient  dominions,  and  tliat  “ they  [the  Virginians]  think  they  have  a right 
to  take  the  lead,  and  the  Southern  States,  and  the  Middle  States  too,  are  too 
much  disposed  to  yield  it  to  them.” 

“I  must  confess,”  says  Mr.  Adams,  “ that  there  appeared  so  much  wisdom  and 
good  sense  in  this,  that  it  made  a deep  impression  on  my  mind,  and  it  had  an 
equal  effect  on  ali  my  colleagues.”  “ This  conversation,”  he  continues,  “ and 
the  principles,  facts,  and  motives  suggested  in  it,  have  given  a color,  complex- 
ion, and  character  to  the  whole  policy  of  the  United  States  from  that  day  to 
this.  Without  it^  Mr.  Washington  would  never  have  commanded  our  armies ; nor 
Mr.  Jefferson  have  been  the  author  of  the  Declaration  of  Independence  ; nor  Mr. 
Richard  Henry  Lee  the  mover  of  it ; nor  Mr.  Chase  the  mover  of  foreign  connec- 
tions. If  I have  ever  had  cause  to  repent  of  any  part  of  this  policy.,  that  repent- 
ance ever  has  been  and  ever  will  be  unavailing.  I had  forgot  to  say,  nor  had  Mr. 
Johnson  ever  have  been  the  nominator  of  Washington  for  general”  (Works, 
II.  512,  513). 

Without  impeaching  the  accuracy  of  Mr.  Adams’s  recollection,  on  the  score 
of  his  age  when  tliis  letter  was  written,  and  without  considering  here  how  or 
why  Mr.  Jefferson  came  to  be  the  author  of  the  Declaration  of  Independence,  it 
is  believed  that  Mr.  Adams  states  other  facts,  in  his  autobiography,  sufficient 
to  show  that  motives  of  policy  towards  Virginia  were  not  the  sole  or  the  prin- 
cipal reasons  why  Washington  was  elected  general.  Mr.  Adams  states,  in  his 
autobiography,  that  at  the  time  when  he  observed  the  professed  jealousy  of 
the  South  against  a New  England  army  under  the  command  of  a Northern  gen- 
eral, it  was  very  visible  to  him  “that  Colonel  Washington  Avas  their  object;” 
“ and,”  he  adds,  “ so  many  of  our  stanchest  men  were  in  the  plan,  that  w^e  could 
carry  nothing  without  conceding  it”  (Works,  II.  415).  When  Mr.  Adams 
came,  as  he  afterwards  did,  to  put  himself  at  the  head  of  this  movement,  and  to 
propose  in  Congress  that  the  army  at  Cambridge  should  be  adopted,  and  that 
a general  should  be  appointed,  he  referred  directly  to  Washington  as  the  person 
whom  he  had  in  his  mind,  and  spoke  of  him  as  “ a gentleman  from  Virginia 
who  was  among  us  and  very  well  known  to  all  of  us,  a gentleman  wdiose  skill 
and  experience  as  an  officer,  whose  independent  fortune,  great  talents,  and  ex- 
cellent universal  cliaracter,  would  command  the  approbation  of  all  America, 
and  unite  the  cordial  exertions  of  all  the  colonies  better  than  any  otlier  per- 
son in  tlie  Union.  Mr.  Washington,  who  happened  to  sit  near  the  door,  as  soon 
as  he  heard  me  allude  to  him,  from  his  usual  modesty,  darted  into  the  library- 
room  ” (Works,  II.  417).  It  is  quite  clear,  therefore,  that  Mr.  Adams  put  the 
appointment  of  Washington,  in  public,  upon  his  qualifications  and  character, 
known  all  over  the  Union.  He  further  states,  that  the  subject  came  under  de- 
bate, and  that  nobody  opposed  the  appointment  of  Washington  on  account  of 
any  personal  objection  to  him;  and  the  only  objection  which  he  mentions  as 
having  been  raised,  was  on  the  ground  that  the  army  near  Boston  w^as  all  from 
New  England,  and  that  they  had  a general  of  their  own  with  whom  they  were 
entirely  satisfied.  He  mentions  one*of  the  Virginia  delegates,  Mr.  Pendleton,  as 
concurring  in  this  objection  ; that  Mr.  Sherman  of  Connecticut  and  Mr.  Cushing 


SECOND  CONTINENTAL  CONGRESS. 


20 


of  Mils.sacluisetts  also  concurred  in  it,  and  tliat  Mr.  Paine  of  Massachusetts  ex- 
pressed strong  personal  friendship  for  General  Ward,  but  gave  no  oi)inion  upon 
the  question.  Afterwards,  he  says,  the  subject  being  postponed  to  a future  day, 
“ pains  were  taken  out  of  doors  to  obtain  a unanimity,  and  the  voices  were 
generally  so  clearly  in  favor  of  Washington,  that  the  dissentient  members  were 
persuaded  to  withdraw  their  opposition,  and  Mr.  Washington  was  nominated,  I 
believe,  by  Mr.  Thomas  Johnson  of  Maryland,  unanimously  elected,  and  the  army 
adopted”  (Ibid). 

It  is  worth  while  to  inquire,  therefore,  what  were  the  controlling  reasons 
which  so  easily  and  so  soon  produced  this  striking  unanimity.  If  it  was  brought 
about  mainly  by  the  exertions  of  a Southern  against  a Northern  party,  and  by 
the  yielding  of  Northern  men  to  the  Virginians  from  motives  of  policy,  it  would 
not  have  been  accomplished  with  so  much  facility,  although  even  a Washington 
were  the  candidate  of  Virginia.  Sectional  jealousies  and  sectional  parties  in- 
flame each  other;  the  struggles  which  they  cause  are  protracted;  and  the  real 
merits  of  men  and  things  are  lost  sight  of  in  the  passions  which  they  arouse.  If 
policy,  as  a leading  or  a principal  motive,  gave  to  General  Washington  the  great 
body  of  the  Northern  votes,  there  would  have  been  more  dissentients  from  that 
])olicy  than  any  of  the  accounts  authorize  us  to  suppose  there  were  at  any  mo- 
ment while  the  subject  was  under  consideration.  Nor  does  the  previous  con- 
duct of  Virginia  warrant  the  belief  that  her  subsequent  exertions  in  the  cause  of 
American  liberty  were  mainly  purchased  by  the  honors  bestowed  upon  her  great 
men,  or  by  so  much  of  precedence  as  was  yielded  in  the  public  councils  to  the 
unquestionable  abilities  of  her  statesmen.  Some  of  them  had  undoubtedly  been 
in  favor  of  measures  of  conciliation  to  a late  period ; but  some  of  them,  as  Wash- 
ington, Patrick  Henry,  and  Richard  Henry  Lee,  had  been,  from  an  early  period, 
convinced  that  the  sword  must  decide  the  controversy.  They  were,  perhaps,  as 
much  divided  upon  this  point,  until  tlie  army  at  Boston  w\as  adopted,  as  the 
leading  men  of  other  colonies.  But  when  the  necessity  of  that  measure  became 
apparent,  it  was  the  peculiar  happiness  of  Virginia  to  be  able  to  present  to  the 
country,  as  a general,  a man  whose  character  and  qualifications  threw  all  local 
and  political  objects  at  once  into  the  shade.  In  order  to  form  a correct  judg- 
ment, at  the  present  day,  of  tlie  motives  which  must  have  produced  a unanim- 
ity so  remarkable  and  so  prompt,  we  have  only  to  recollect  the  previous  history 
of  Washington,  as  it  was  known  to  the  Congress  at  the  moment  when  he  shrank 
from  the  mention  of  his  name  in  that  assembly. 

He  was  forty-three  years  of  age.  From  early  youth  he  had  had  a training 
that  eminently  fitted  him  for  the  great  part  which  he  was  afterwards  to  play, 
and  which  unfolded  the  singular  capacities  of  his  character  to  meet  the  extraor- 
dinary emergencies  of  the  post  to  which  he  was  subsequently  called.  That 
training  had  been  both  in  military  and  in  civil  life.  His  military  career  had 
been  one  of  much  activity  and  responsibility,  and  had  embraced  several  brilliant 
achievements.  In  1751  it  became  necessary  to  put  the  militia  of  Virginia  in  a 
condition  to  defend  the  frontiers  against  the  French  and  the  Indians.  The 
province  was  divided  into  military  districts,  in  each  of  which  an  adjutant-gen- 


30 


CONSTITUTIONAL  HISTORY. 


eral,  with  the  rank  of  major,  was  commissioned  to  drill  and  inspect  the  militia. 
Washington,  at  the  age  of  nineteen,  received  the  appointment  to  one  of  these 
districts;  and  in  the  following  year  tlie  province  was  again  divided  into  four 
grand  military  divisions,  of  which  the  northern  was  assigned  to  him  as  adjutant- 
general.  In  1753  the  French  crossed  the  lakes,  to  establish  posts  on  the  Ohio, 
and  were  joined  by  the  Indians.  Major  Washington  was  sent  by  the  Governor 
of  Virginia  to  warn  them  to  retire.  This  expedition  was  one  of  difficulty  and  of 
delicacy.  He  crossed  the  Alleghany  Mountains,  reached  the  Ohio,  had  inter- 
views with  the  French  commander  and  the  Indians,  and  returned  to  Williams- 
burg to  make  report  to  the  governor.  Of  this  journey,  full  of  perilous  adven- 
tures and  narrow  escapes,  he  kept  a journal,  which  was  published  by  the  gov- 
ernor; was  copied  into  most  of  the  newspapers  of  the  other  colonies;  and  was 
reprinted  in  London  as  a document  of  much  importance,  exhibiting  the  views 
and  designs  of  the  French.  In  1754  he  was  appointed,  with  the  rank  of  lieu- 
tenant-colonel, second  in  command  of  the  provincial  troops  raised  by  the  legisla- 
ture to  repel  the  French  invasion.  On  tlie  first  encounter  with  a party  of  the 
enemy,  under  Jumonville,  on  the  28th  of  May,  1754,  the  chief  command  devolved 
on  Washington,  in  the  absence  of  his  superior.  The  French  leader  was  killed, 
and  most  of  his  party  were  taken  prisoners.  Washington  commanded  also  at 
the  battle  of  the  Great  Meadows,  and  received  a vote  of  thanks  for  his  services 
from  the  House  of  Burgesses.  This  was  in  1754,  wlien  he  was  at  the  age  of 
twenty-two.  During  the  next  year,  in  consequence  of  the  effect  of  some  new 
arrangement  of  the  provincial  troops,  he  was  reduced  from  the  rank  of  colonel  to 
that  of  captain,  and  thereupon  retired  from  the  army,  with  the  consolation  that 
he  had  received  the  thanks  of  his  country  for  the  services  he  had  rendered.  In 
1755  he  consented  to  serve  as  aide-de-camp  to  General  Braddock,  who  had  ar- 
rived from  England  with  two  regiments  of  regular  troops.  In  this  capacity  he 
served  in  the  battle  of  the  Monongahela  with  much  distinction.  The  two  other 
aids  were  wounded  and  disabled  early  in  the  action,  and  the  duty  of  distributing 
the  general’s  orders  devolved  wholly  upon  Washington.  It  was  in  this  battle 
that  he  acquired  with  the  Indians  the  reputation  of  being  under  the  special 
protection  of  the  Great  Spirit,  because  he  escaped  the  aim  of  many  of  their 
rifles,  although  two  horses  were  shot  under  him,  and  his  dress  was  perforated 
by  four  bullets.  His  conduct  on  this  occasion  became  known  and  celebrated 
throughout  the  country  ; and  when  he  retired  to  Mount  Vernon,  as  he  did  soon 
after,  at  the  age  of  three-and-twenty,  he  not  only  carried  with  him  a decisive 
reputation  for  personal  bravery,  but  he  was  known  to  have  given  advice  to 
Braddock,  before  the  action,  which  all  men  saw,  after  it,  would,  if  it  had  been 
duly  heeded,  have  prevented  his  defeat.  But  he  was  not  allowed  to  remain 
long  in  retirement.  In  August,  1755,  he  was  appointed  commander-in-chief  of 
all  the  provincial  forces  of  Virginia,  and  immediately  entered  upon  the  duties 
of  reorganizing  the  old  and  raising  new  troops,  in  the  course  of  which  he  visited 
all  the  outposts  along  the  frontier.  Soon  afterwards,  a dispute  about  rank  hav- 
ing arisen  with  a person  who  claimed  to  take  precedence  of  provincial  officers 
because  he  had  formerly  held  the  king’s  commission,  it  became  necessary  for 


SECOND  CONTINENTAL  CONGRESS. 


31 


Colonel  Wjisliing-ton  to  nmkc  a visit  to  Boston,  in  oi’dc>r  to  liave  the  point  de- 
cided by  General  Shirley,  the  coininander-in-chief  of  his  majesty’s  armies  in 
America.  He  commenced  his  journey  on  the  4th  of  February,  175(),  and  passed 
through  Philadelphia,  New  York,  New  London,  Newport,  and  Providence,  and 
visited  the  governors  of  Pennsylvania  and  New  York,  In  all  the  principal  cities 
his  character,  and  his  remarkable  escape  at  Braddock's  defeat,  made  him  the 
object  of  a strong  public  interest.  At  Boston  he  was  received  with  marked  dis- 
tinction by  General  Shirley  and  by  the  whole  society  of  the  town,  and  the  ques- 
tion of  rank  was  decided  according  to  his  wishes.  General  Shirley  explained 
to  him  the  intended  operations  of  the  next  campaign;  and,  after  an  absence 
from  Virginia  of  seven  weeks,  he  returned  to  resume  his  command.  The  next 
three  years  were  spent  in  the  duties  of  this  laborious  and  responsible  ])osition, 
the  difficulties  and  embarrassments  of  which  bore  a strong  resemblance  to  those 
which  he  afterwards  had  to  encounter  in  the  war  of  the  Revolution,  In  1758 
he  commanded  the  Virginia  troops  in  the  expedition  against  Fort  Duquesne, 
under  General  Forbes.  Great  deference  was  paid  by  that  officer  to  his  opinions 
and  judgment,  in  arranging  the  line  of  march  and  order  of  battle,  on  this  im- 
portant expedition ; for  the  fate  of  Braddock  was  before  him.  The  command 
of  the  advanced  division,  consisting  of  one  thousand  men,  was  assigned  to  him, 
with  the  tem})orary  rank  of  brigadier.  When  the  army  had  approached  within 
fifty  miles  of  Fort  Duquesne,  the  French  deserted  it ; its  surrender  to  the  Eng- 
lish closed  the  campaign;  and  in  December  Washington  resigned  his  commis- 
sion, and  retired  to  Mount  Vernon.  What  he  had  been,  and  what  he  then  was.^ 
to  the  colony  of  Virginia,  is  shown  by  the  address  presented  to  him  by  the  offi- 
cers of  the  provincial  troops  on  his  retirement.  “ In  our  earliest  infancy,”  said 
they,  “ yon  took  us  under  your  tuition,  trained  us  up  in  the  practice  of  that  dis- 
cipline which  alone  can  constitute  good  troops,  from  the  punctual  observance 
of  which  you  never  sufiered  the  least  deviation.  Your  steady  adherence  to  im- 
partial justice,  your  quick  discernment,  and  invariable  regard  to  merit,  wisely 
intended  to  inculcate  those  genuine  sentiments  of  true  honor  and  passion  for 
glory  from  which  the  greatest  military  achievements  have  been  derived,  first 
heightened  our  natural  emulation  and  our  desire  to  excel.  How  much  we  im- 
proved by  those  regulations  and  your  own  example,  with  what  alacrity  we  have 
hitherto  discharged  our  duty,  with  what  cheerfulness  we  have  encountered  the 
severest  toils,  especially  while  under  your  particular  directions,  we  submit  to 
yourself,  and  fiatter  ourselves  that  we  have  in  a great  measure  answered  your 
expectations.  ...  It  gives  us  additional  sorrow,  when  we  reflect,  to  find  our 
unhappy  country  will  receive  a loss  no  less  irreparable  than  our  own.  Where 
will  it  meet  a man  so  experienced  in  military  affairs,  one  so  renowned  for  patri- 
otism, conduct,  and  courage  ? Who  has  so  great  a knowledge  of  the  enemy  we 
have  to  deal  with  ? Who  so  well  acquainted  with  their  situation  and  strength  ? 
Who  so  much  respected  by  the  soldiery  ? Who,  in  short,  so  able  to  support  the 
military  character  of  Virginia  ? Your  approved  love  to  your  king  and  coun- 
try, and  your  uncommon  perseverance  in  promoting  the  honor  and  true  interest 
of  the  service,  convince  us  that  the  most  cogent  reasons  only  could  induce  you 


32 


CONSTITUTIONAL  HISTORY. 


to  quit  it ; yet  wc,  with  the  greatest  deference,  presume  to  entreat  you  to  sus- 
pend those  tliouglits  for  another  year,  and  to  lead, us  on  in  the  glorious  work  of 
extirpating  our  enemies,  towards  which  so  considerable  advances  have  already 
been  made.  In  you  we  place  the  most  implicit  confidence.  Your  presence 
only  will  cause  a steady  firmness  and  vigor  to  actuate  every  breast,  despising 
the  greatest  dangers,  and  thinking  light  of  toils  and  hardships,  while  led  on 
by  the  man  we  know  and  love.  But  if  we  must  be  so  unhappy  as  to  part, 
if  the  exigencies  of  your  affairs  force  you  to  abandon  us,  we  beg  it  as  our  last 
request,  that  you  will  i-ecommend  some  person  most  capable  to  command, 
whose  military  knowledge,  whose  honor,  whose  conduct,  and  whose  disinter- 
ested principles  we  may  depend  on.  Frankness,  sincerity,  and  a certain  open- 
ness of  soul  are  the  true  characteristics  of  an  officer,  and  we  flatter  ourselves 
that  you  do  not  think  us  capable  of  saying  anything  contrary  to  the  purest 
dictates  of  our  mind^.  Fully  persuaded  of  this,  we  beg  leave  to  assure  you  that,- 
as  you  have  hitherto  been  the  actuating  soul  of  our  whole  corps,  we  shall  at  all 
times  pay  the  most  invariable  regard  to  your  will  and  pleasure,  and  shall  be 
always  happy  to  demonstrate  by  our  actions  with  how  much  respect  and  esteem 
we  are,”  etc. 

Washington’s  marriage  took  place  soon  after  his  resignation  (January  6th, 
1759),  and  his  civil  life  now  commenced.  He  had  been  elected  a member  of 
the  House  of  Burgesses,  before  the  close  of  the  campaign,  and  in  the  course 
of  the  winter  he  took  his  seat.  Upon  this  occasion,  his  inability,  from  confu- 
sion and  modesty,  to  reply  to  a highly  eulogistic  address  made  to  him  by  the 
speaker,  Mr.  Robinson,  drew  from  that  gentleman  the  celebrated  compliment, 
“ Sit  down,  Mr.  Washington,  your  modesty  equals  your  valor,  and  that  sur- 
passes the  power  of  any  language  that  I possess.”  He  continued  a membei 
of  the  House  of  Burgesses  until  the  commencement  of  the  Revolution,  a pe- 
riod of  fifteen  years.  He  was  not  a frequent  speaker;  but  his  sound  judg- 
ment, quick  perception,  and  firmness  and  sincerity  of  character,  gave  him  an 
influence  which  the  habit  of  much  speaking  does  not  give,  and  which  is  often 
denied  to  eloquence.  As  the  time  drew  near  wdien  the  controversies  between 
the  colonies  and  England  began  to  assume  a threatening  attitude,  he  was  nat- 
urally found  with  Henry,  Randolph,  Lee,  Wythe,  and  Mason,  and  the  other  pa- 
triotic leaders  of  the  colonies.  His  views  concerning  the  policy  of  the  non- 
importation agreements  were  early  formed  and  made  known.  In  1769  he  took 
charge  of  the  Articles  of  Association,  drawn  by  Mr,  Mason,  which  were  in- 
tended to  bring  about  a concert  of  action  between  all  the  colonies,  for  the 
purpose  of  presenting  them  to  the  assembly,  of  which  Mr.  Mason  was  not  a 
member.  In  1774  he  was  chosen  a member  of  the  first  Virginia  Convention, 
and  was  by  that  body  elected  a delegate  to  the  first  Continental  Congress, 
where  he  was  undoubtedly  the  most  conspicuous  person  present.  The  second 
Virginia  Convention  met  in  March,  1775,  and  re-elected  the  former  delegates  to 
the^second  Continental  Congress,  from  which  Washington  was  removed  by  his 
appointment  as  commander-in-chief. 

There  can  be  no  doubt,  therefore,  that  Washington  was  chosen  commander- 


SECOND  CONTINENTAL  CONGRESS. 


in-chief  for  his  unquestionable  merits,  and  not  as  a compromise  between  sec- 
tional interests  and  local  jealousies. 

(The  authorities  for  the  statements  in  this  note  concerning  Washington’s 
history  arc  the  biographies  by  Marshall  and  Sparks,  and  the  Writings  of  Wash- 
ington, edited  by  the  latter.) 


CHAPTER  III. 

1776-1777. 

Continuance  of  the  Revolutionary  Government. — Declaration 
OF  Independence. — Preparations  for  a New  Government. — 
Formation  of  the  Continental  Army. 

On  the  7th  of  June,  1776,  after  the  Congress  had  in  fact  as- 
sumed and  exercised  sovereign  powers  with  the  assent  of  the  peo- 
ple of  America,  a resolution  was  moved  by  Richard  Henry  Lee  of 
Virginia,  and  seconded  by  John  Adams  of  Massachusetts,  ‘‘That 
these  United  Colonies  are,  and  of  right  ought  to  be,  free  and  in- 
dependent states  ; and  that  all  political  connection  between  them 
and  the  state  of  Great  Britain  is,  and  ought  to  be,  totally  sup- 
pressed.” ' This  resolution  was  referred  to  a committee  of  the 

1 Richard  Henry  Lee,  the  mover  of  this  resolution,  was  born  on  the  20th  of 
June,  1732,  at  Stratford,  Westmoreland  County,  Virginia.  His  earlier  education 
was  completed  in  England,  whence  he  returned  in  his  nineteenth  year.  Pos- 
sessed of  a good  fortune,  he  devoted  himself  to  public  affairs.  At  the  age  of 
twenty-five  he  entered  the  House  of  Burgesses,  wliere  he  became  a distinguished 
advocate  of  republican  doctrines,  and  a strenuous  opponent  of  tlie  right  claimed 
by  Parliament  to  tax  the  colonics,  of  the  Stamp  Act,  and  of  the  other  aibitiaiy 
measures  of  the  home  government,  co-operating  with  Patrick  Henry  in  all  his  great 
patriotic  efforts.  He  was  the  author  of  the  plan  adopted  by  the  House  of  Bur- 
gesses in  1773  for  the  formation  of  committees  of  correspondence,  to  be  organ- 
ized by  the  colonial  legislatures,  and  out  of  which  grew  the  plan  of  the  Conti- 
nental Congress.  In  1774  he  was  elected  one  of  the  delegates  from  Virginia  to 
the  Congress,  in  which  body,  from  his  known  ability  as  a political  writei  and 
his  services  in  the  popular  cause,  he  was  placed  on  the  committees  to  prepare 
the  addresses  to  the  King,  to  tlie  Peoj^le  of  Great  Britain,  and  to  the  People  of 
the  Colonies,  the  last  of  which  he  wrote.  In  the  second  Congress  he  was  se- 
lected to  move  the  resolution  of  independence;  and  besides  serving  on  other 
very  important  committees,  he  furnislied,  as  clrairman  of  the  committee  in- 
structed to  prepare  them,  the  commission  and  instructions  to  Genei-al  Washing- 
ton. As  mover  of  the  resolution  of  independence,  he  would,  according  to  the 
usual  practice,  have  been  made  chairman  of  the  committee  to  prepare  the  Dec- 


THE  llEVOLUTIONAKY  GOVERNMENT. 


whole,  aiul  was  debated  until  the  10th,  when  it  was  adoi)ted  in 
coinniittee.  On  the  same  day  a committee,  consisting  of  live 
members,'  Avas  instructed  to  ])re])are  a declaration  ‘Hhat  these 
United  Colonies  are,  and  of  right  ought  to  be,  free  and  indei)en- 
dent  states;  that  they  are  absolved  from  all  allegiance  to  the 
British  crown;  and  that  all  political  connection  between  them 
and  the  state  of  Great  Britain  is,  and  ought  to  be,  dissolved.” 
The  resolution  introduced  by  Mr.  Lee  on  the  7th  Avas  postponed 
until  the  1st  of  July,  to  give  time  for  greater  unanimity  among 
the  members,  and  to  enable  the  people  of  the  colonies  to  instruct 
and  influence  their  delegates. 

The  postponement  Avas  immediately  folloAA^ed  by  proceedings 
in  the  colonies,  in  most  of  Avhich  the  delegates  in  Congress  AA^ere 
either  instructed  or  authorized  to  vote  for  the  resolution  of  inde- 
pendence; and  on  the  2d  of  July  that  resolution  received  the  as- 
sent in  Congress  of  all  the  colonies,  excepting  Pennsylvania  and 
DelaAvare.  The  Declaration  of  Independence  was  reported  by 
the  committee,  Avho  had  been  instructed  to  prepare  it,  on  the  28th 
of  June,  and  on  the  4th  of  July  it  received  the  vote  of  every  col- 
ony, and  Avas  published  to  the  Avorld." 

This  celebrated  instrument,  regarded  as  a legislative  proceed- 
ing, Avas  the  solemn  enactment,  by  the  representatiA^es  of  all  the 
colonies,  of  a complete  dissolution  of  their  allegiance  to  the  Brit- 
ish croAvn.  It  severed  the  political  connection  betAveen  the  people 
of  this  country  and  the  people  of  England,  and  at  once  erected 

l:\ration;  but  on  the  10th  of  June,  the  day  when  the  subject  was  postponed,  he 
was  obliged  to  leave  Congress,  and  return  home  for  a short  time,  on  account  of 
the  illness  of  , some  member  of  his  family.  He  came  back  to  Congress  and  re- 
mained a member  until  June,  1777,  when  he  went  home  on  account  of  ill-health. 
In  August,  1778,  he  was  again  elected  a member,  and  continued  to  serve  until 
1780 ; but  from  feeble  health  was  compelled  to  take  a less  active  part  than  he 
had  taken  in  former  years.  He  was  out  of  Congress  from  1780  until  1784,  wlven 
he  was  elected  its  President,  but  retired  at  the  end  of  the  year.  He  was  op- 
posed to  tl  e Constitution  of  the  United  States,  but  voted  in  Congress  to  submit 
it  to  the  ])eople.  After  its  adoption,  he  was  elected  one  of  the  first  senators 
under  it  fi'om  Virginia,  and  in  that  capacity  moved  and  carried  several  amend- 
ments. In  1792  his  continued  ill-health  obliged  him  to  retire  from  public  life. 
He  died  June  19,1794. 

^ Thejanas  Jeflerson,  John  Adams,  Benjamin  Franklin,  Roger  Sherman,  and  R. 
R.  Livin  ^ston.  “ See  note  at  the  end  of  the  chapter. 


36 


CONSTITUTIONAL  HISTORY. 


the  different  colonies  into  free  and  independent  states.  The  body 
by  which  this  step  was  taken  constituted  the  actual  government 
of  the  nation,  at  the  time,  and  its  members  had  been  directly  in- 
vested with  competent  legislative  power  to  take  it,  and  had  also 
been  specially  instructed  to  do  so.  The  consequences  flowing 
from  its  adoption  were,  that  the  local  allegiance  of  the  inhabitants 
of  each  colony  became  transferred  and  due  to  the  colony  itself,  or, 
as  it  was  expressed  by  the  Congress,  became  due  to  the  laws  of 
the  colony,  from  which  they  derived’ protection  ; ' that  the  people 
of  the  country  became  thenceforth  the  rightful  sovereign  of  the 
country;  that  they  became  united  in -4  national  capacity,  as  one 
people  ; that  they  could  thereafter  enter  into  treaties  and  contract 
alliances  with  foreign  nations,  could  levy  war  and  conclude  peace, 
and  do  all  other  acts  pertaining  to  the  exercise  of  a national  sov- 
ereignty ; and  Anally,  that,  in  thefr  ^national  capacity,  they  became 
known  and  designated  as  the  United  States  of  America.  This 
Declaration  was  the  first  national  state  paper  in  which  these 
words  Avere  used  as  the  style  and  title  of  the  nation.  In  the  en- 
acting part  of  the  instrument,  the  Congress  styled  themseh^es 
“the  representatives  of  the  United  States  of  America  in  general 
Congress  assembled and  from  that  period  the  previously  “ United 
Colonies”  have  been  known  as  a political  community,  both  within 
their  oAvn  borders  and  by  the  other  nations  of  the  world,  by  the 
title  which  they  then  assumed."* 

On  the  same  day  on  Avhich  the  committee  for  preparing  the 
Declaration  of  Independence  was  appointed,  another  committee, 

^ On  the  24th  of  June,  1776,  the  Congress  declared,  by  resolution,  that  “all 
persons  abiding  within  any  of  the  United  Colonies,  and  deriving  protection 
from  the  laws  of  the  same,  owed  allegiance  to  the  said  laws,  and  were  members 
of  such  colony;  and  that  all  persons  passing  through  or  making  a temporary 
stay  in  any  of  the  colonies,  being  entitled  to  the  protection  of  the  laws,  during 
the  time  of  such  passtige,  visitation,  or  temporary  stay,  owed,  during  the  same, 
allegiance  thereto.”  Journals,  II.  216. 

2 The  title  of  “The  United  States  of  America”  was  formally  assumed  in  the 
Articles  of  Confederation,  when  they  came  to  be  adopted.  But  it  \;as  in  use, 
without  formal  enactment,  from  the  date  of  the  adoption  of  the  Declaration  of 
Independence.  On  the  9th  of  September,  1776,  it  was  ordered  that  in  all  con- 
tinental commissions  and  other  instruments,  where  the  words  “United  Colo- 
nies” had  been  used,  the  style  should  be  altered  to  the  “ United  States  ” Jour- 
nals, II.  349. 


THE  REVOLUTIONARY  GOVERNMENT.  37 

consisting  of  one  member  from  each  colony,  was  directed  “to  pre- 
pare and  digest  tlie  form  of  a confederation  to  be  entered  into 
between  these  colonies.”  This  committee  reported  a draft  of  Ar- 
ticles of  Confederation,  on  the  12th  of  duly,  which  were  debated 
in  Congress  on  several  occasions  between  that  day  and  the  20th 
of  August  of  the  same  year,  at  which  time  a new  draft  was  re- 
ported, and  ordered  to  be  printed.  The  subject  was  not  again 
resumed  until  the  8th  of  April,  1777 ; but,  between  that  date  and 
the  15th  of  the  following  November,  sundry  amendments  were 
discussed  and  adopted,  and  the  whole  of  the  articles,  as  amended, 
were  printed  for  the  use  of  the  Congress  and  the  state  legisla- 
tures. On  the  17th  of  November  -a-  circular  letter  was  reported 
and  adopted,  to  be  addressed  to  the  legislatures  of  the  thirteen 
states,  recommending  to  them  “to  invest  the  delegates  of  the 
state  with  competent  powers,  ultimately,  in  the  name  and  behalf 
of  the  state,  to  subscribe  Articles  of  Confederation  and  Perpetual 
Union  of  the  United  States,  and  to  attend  Congress  for  that  pur- 
pose on  or  before  the  10th  day  of  March  next.” ' 

A year  and  five  months  had  thus  elapsed  between  the  agita- 
tion of  the  subject  of  a new  form  of  national  government  and  the 
adoption  and  recommendation  of  a form,  by  the  Congress,  for  the 
consideration  of  the  states.^  During  this  interval  the  affairs  of 
the  country  were  administered  by  the  Pevolutionary  Congress, 
which  had  been  instituted,  originally,  for  the  purpose  of  obtain- 
ing redress  peaceably  from  the  British  ministry,  but  which  after- 
wards became  de  facto  the  government  of  the  country,  for  all  the 
purposes  of  revolution  and  independence.  In  order  to  appreciate 
the  objects  of  the  Confederation,  the  obstacles  which  it  had  to 
encounter,  and  the  mode  in  which  those  obstacles  were  finally 
overcome,  it  is  necessary  here  to  take  a brief  survey  of  the  national 
affairs  during  the  period  beginning  with  the  commencement  of 
the  war  and  the  Declaration  of  Independence,  and  extending  to 
the  date  of  the  submission  of  the  Articles  of  Confederation  to  the 
state  legislatures.  From  no  point  of  view ’can  so  much  instruc- 
tion be  derived  as  from  the  position  in  which  Washington  stood 
during  this  period.  By  following  the  fortunes  and  appreciating 


1 Journals,  II.  263,  320;  III.  123,  502,  513. 

“ From  June  11,  1776,  to  November  17, 1777. 


CONSTITUTIONAL  HISTORY. 


38 

the  exertions  of  him  who  had  been  charged  Avith  the  great  mili- 
tary duty  of  achieving  the  liberties  of  the  country,  and  especially 
bv  observing  his  relations  Avith  the  government  that  had  under- 
taken the  Avar,  Ave  can  best  understand  the  fitness  of  that  govern- 
ment for  the  great  task  to  Avhich  it  had  been  called. 

Tlie  continental  government,  Avhich  commissioned  and  sent 
Washington  to  take  the  command  of  the  army  Avhich  it  had 
adopted,  consisted  solely  of  a body  of  delegates,  chosen  to  rep- 
resent the  people  of  the  several  colonies  or  states,  for  certain 
purposes  of  national  defence,  safety,  redress,  and,  finally,  revolu- 
tion. When  the  AA^ar  had  actually  commenced,  and  the  United 
Colonies  Avere  engaged  in  Avaging  it,  the  Congress  possessed,  theo- 
retically and  rightfully,  large  political  po Avers,  of  a revolutionary 
nature ; but,  practically,  they  had  little  direct  civil  poAver^either 
legislative  or  executive.  They  Avere  obliged  to  rely  almost  Avholly 
on  the  legislatures,  provincial  congresses  and  committees,  or  other 
local  bodies  of  the  several  colonies  or  states,  to  carry  out  their 
plans.  When  Washington  arrived  at  Cambridge  and  found  the 
army  then  encamped  around  Boston  in  a state  requiring  it  to  be 
entirely  remodelled,  be  came  as  the  general  of  a government 
Avhich  could  do  little  more  for  him  than  recommend  him  to  the 
Provincial  Congress,  to  the  Committee  of  Safety,  and  to  the 
prominent  citizens  of  Massachusetts  Bay.  The  people  of  the 
United  States,  at  the  present  day,  familiar  Avith  the  apparatus  of 
national  poAA^er,  can  form  some  idea  of  Washington’s  position,  and 
of  that  of  the  government  Avhich  he  serA^ed,  from  the  fact  that, 
AA"hen  he  left  Philadelphia  to  take  the  command  of  the  army,  he 
requested  the  Massachusetts  delegates  to  recommend  to  him  bod- 
ies of  men  and  respectable  individuals,  to  Avhom  he  might  apply 
to  get  done,  tlirough  voluntary  co-operation,  Avhat  Avas  absolutely 
essential  to  the  existence  of  that  army.^  In  truth,  the  Avhole  of 
his  residence  in  Massachusetts  during  the  summer  of  1775  and  the 
Avinter  of  1775-6,  until  he  saAV  the  British  fleet  go  doAvn  the  har- 
bor of  Boston,  AAms  filled  Avith  complicated  difficulties,  Avhich 
sprang  from  the  nature  of  the  revolutionary  government  and  the 
defects  in  its  civil  machinery,  far  more  than  from  any  and  all 
other  causes.  These  difficulties  required  the  exertion  of  great 


’ Sparks’s  Washington,  III.  20,  note. 


THE  REVOLUTION  AKY  GOVERNMENT. 


39 


intellcclual  and  physical  encroy,  the  aj)[)lication  of  consummate 
])rudence  and  forecast,  and  the  patience  and  fortitude  which  in 
him  were  so  hap|)ily  combined  with  power.  AVe  may  look  back 
upon  his  elfoi’ts  to  encounter  these  obstacles  as  among  the  more 
prominent  and  sti’iking  manifestations  of  the  strength  of  Wash- 
ington's mind  and  character,  and  as  among  the  most  valuable 
proofs  of  what  we  owe  to  him. 

On  the  one  side  of  him  was  the  body  of  delegates,  sitting  at 
Philadelphia,  by  whom  he  had  been  commissioned,  who  consti- 
tuted the  government  of  America,  and  from  whom  every  direc- 
tion, order,  or  requisition,  concerning  national  affairs,  necessarily 
proceeded.  On  the  other  side  were  the  provincial  congresses, 
and  other  public  bodies  of  the  New  England  colonies,  on  whom 
he  and  the  Congress  were  obliged  to  rely  for  the  execution  of 
their  plans.  He  was  compelled  to  become  the  director  of  this 
complicated  machinery.  There  were  committees  of  the  Congress, 
charged  with  the  different  branches  of  the  public  service;  but 
AYashington  was  obliged  to  attend  personally  to  every  detail,  and 
to  suggest,  to  urge,  and  to  entreat  action  upon  all  the  subjects 
that  concerned  the  army  and  the  campaign.  His  letters,  ad- 
dressed to  the  President  of  Congress,  Avere  read  in  that  body,  and 
votes  or  resolutions  Avere  passed  to  give  effect  to  his  requests  or 
recommendations.  But  this  Avas  not  enough.  Having  obtained 
the  proper  order  or  requisition,  he  Avas  next  obliged  to  see  that  it 
Avas  executed  by  the  local  bodies  or  magistrates,  Avith  Avhom  he 
not  infrequently  Avas  forced  to  discuss  the  Avhole  subject  aneAv. 
He  met  Avith  great  readiness  of  attention,  and  every  disposition 
to  make  things  personally  convenient  and  agreeable  to  him ; but 
he  found,  as  he  has  recorded,  a vital  and  inherent  principle  of  de- 
lay, incompatible  Avith  military  service,  in  the  necessity  he  Avas 
under  to  transact  business  through  such  numerous  and  different 
channels.'  His  applications  to  the  Governor  of  Connecticut  for 
hunting-shirts  for  the  army ; ^ to  the  Governor  of  Bhode  Island 
for  powder ; " to  the  Massachusetts  ProAuncial  Congress  to  appre- 
hend deserters  and  to  furnish  supplies;''  and  to  the  NeAV  Y"ork 
ProAuncial  Congress  to  prevent  their  citizens  from  trading  Avith 
the  enemy  in  Boston'  — together  Avith  the  earnest  appeals  AAdiich 

' Works,  III.  20.  2 Ibid.,  46.  ® Ibid.,  47.  * Ibid.,  55.  ® Ibid.,  55. 


40 


CONSTITUTIONAL  HISTORY. 


he  was  obliged  to  make  on  these  and  many  other  subjects,  which 
should  never  have  been  permitted  to  embarrass  him— show  how 
feeble  were  the  powers  and  how  defective  was  the  machinery  of 
the  government  which  he  served. 

But  there  are  two  or  three  topics  which  it  will  be  necessary 
to  examine  more  particularly,  in  order  fully  to  understand  the 
character  and  working  of  the  revolutionary  government.  The 
first  of  these  is  the  formation  of  the  army. 

In  order  to  carry  on  a war  of  any  duration,  it  is  the  settled 
result  of  all  experience  that  the  soldier  should  be  bound  to  serve 
for  a period  long  enough  to  insure  discipline  and  skill,  and  should 
be  under  the  influence  of  motives  which  look  to  substantial  pecu- 
niary rewards,  as  well  as  those  founded  on  patriotism.  Accord- 
ing to  Washington’s  experience,  this  is  as  true  of  otficers  as  it  is 
of  common  soldiers ; and  undoubtedly  no  army  can  be  formed, 
and  kept  long  enough  in  the  field  to  be  relied  upon  for  the  accom- 
plishment of  great  purposes,  if  these  maxims  are  neglected  in  its 
organization. 

Unfortunately,  the  Eevolutionary  Congress,  at  the  very  com- 
mencement of  the  war,  committed  the  serious  error  of  enlisting 
soldiers  for  short  periods.  When  Washington  arrived  at  Cam- 
bridge, the  army  which  the  Congress  had  just  adopted  as  the 
continental  establishment  consisted  of  certain  regiments  raised 
^n^he  spur  of  the  moment  by  the  provinces  of  Massachusetts, 
Aew  Hampshire,  Bhode  Island,  and  Connecticut  5 acting  under 
their  respective  officers ; regulated  by  their  own  militia  laws  ; and, 
with  the  exception  of  those  from  Massachusetts,  under  no  legal 
obligation  to  obey  the  general  then  in  command.  The  terms  of 
service  of  most  of  these  men  would  expire  in  the  autumn  ; and 
as  they  had  enlisted  under  their  local  governments  for  a special 
object,  and  had  not  been  in  service  long  enough  to  have  merged 
their  habits  of  thinking  and  feeling,  as  Hew  England  citizens,  in 
the  character  of  soldiers,  they  denied  the  power  of  their  own 
governments  or  of  the  Congress  to  transfer  them  into  another 
service,  or  to  retain  them  after  their  enlistments  had  expired. 


1 Letters  of  General  Washington  to  the  President  of  Congress,  September 
21,  1775  (Works,  III.  98);  October  30,  1775  (Ibid.,  137);  November  8,  1775 
(Ibid.,  146). 


THE  REVOLUTIONARY  GOVERNMENT. 


41 


Tlie  army  was  tlierefore  to  be  entirely  remodelled ; or,  to  speak 
more  correctly,  an  ai’iny  was  to  be  formed,  by  making  enlistments 
under  the  Articles  of  AVar  which  had  been  ado})ted  by  the  Con- 
gress, and  by  organizing  new  regiments  and  brigades  under  officers 
holding  continental  commissions.  But  the  greatest  difficulties 
had  to  be  encountered  in  this  undertaking.  The  continental  Arti- 
cles of  AVar  recpiired  a longer  term  of  service  than  any  of  these 
troops  had  originally  engaged  for,  and  the  rules  and  regulations 
Avere  far  more  stringent  than  the  discipline  to  Avhich  they  had 
hitherto  been  subjected.  There  Avas,  moreover,  great  reluctance 
on  the  part  of  both  officers  and  men  to  serA^e  in  regiments  con- 
sisting of  the  inhabitants  of  different  colonies.  A Connecticut 
captain  Avould  not  serve  under  a Massachusetts  colonel ; a Massa- 
chusetts colonel  AA^as  unAvilling  to  command  Khode  Island  men  ; 
and  the  men  Avere  equally  indisposed  to  serve  under  officers  from 
another  colony,  or  under  any  officers,  in  fact,  but  those  of  their 
OAvn  choosing.' 

In  this  state  of  things  a committee,  consisting  of  Dr.  Frank- 
lin, Mr.  Lynch,  and  Colonel  Harrison,  AA^as  sent  by  the  Congress 
to  confer  with  AA^ashington  and  Avith  the  local  governments 
of  the  HeAv  England  colonies,  on  the  most  effectual  method 
of  continuing,  supporting,  and  regulating  a continental  army.* 
This  committee  arrived  at  Cambridge  on  the  18th  of  October, 
and  sat  until  the  24th. ^ They  rendered  A^ery  important  serAuces 
to  the  commander-in-chief  in  the  organization  of  the  army ; but 
in  forming  this  first  military  establishment  of  the  Union  the 
strange  error  AA^as  committed  by  the  Congress  of  enlisting  the 
men  for  the  term  of  one  year  only,  if  not  sooner  discharged  ; 
a capital  mistake,  the  consequences  of  Avhich  were  severely  felt 
throughout  the  Avhole  Avar. 

There  is  no  reason  to  suppose  that  AFashington  concurred 
in  the  expediency  of  such  short  enlistments,  then  or  at  any 
other  time ; but  he  Avas  obliged  to  yield  to  the  pressure  of  the 

1 Letters  of  General  Washington  to  Joseph  Reed,  November  8,  1775  (Works, 
III.  150);  November  28,  1775  (Ibid.,  177);  and  to  the  President  of  Congress, 
December  4, 1775  (Ibid.,  184) ; to  Governor  Cooke  of  Connecticut,  December  5, 
1775  (Ibid.,  188). 

* Journals  of  Congress,  II.  208,  September  29,  1775. 

2 Writings  of  Washington,  III.  123,  note. 


42 


CONSTITUTIONxYL  HISTORY. 


causes  to  which  the  mistake  is  fairly  to  be  attributed.  In  fact, 
we  find  him,  in  a short  time  after  the  new  system  had  been  put 
into  o])eration,  pointing  it  out  as  a fatal  error,  in  a letter  to  the 
President  of  Congress.'  The  error  may  have  been  owing  to  the 
character  of  the  government,  to  the  opinions  and  prejudices  pre- 
vailing in  Congress,  and  to  the  delusive  idea,  which  still  lingered 
in  the  minds  of  many  of  the  members,  that,  although  the  s\\  ord 
had  been  drawn,  the  scabbard  was  not  wholly  thrown  aside,  and 
that  they  should  be  able  to  coerce  the  British  ministry  into  a re- 
dress of  grievances,  which  might  be  followed  by  a restoration  of 
the  relations  between  the  colonies  and  the  mother  country,  upon 
a constitutional  basis.  Ko  such  idea  was  entertained  by  Wash- 
ington from  the  beginning.  He  harbored  no  thought  of  accom- 
modation, after  the  measures  adopted  in  consequence  of  the  battle 
of  Bunker’s  Hill. 

But  at  the  time  of  which  I am  now  treating,  the  issue  had  not 
been  made,  as  Washington  w^ould  have  made  it;  and,  when  we 
consider  the  state  of  things  before  the  Declaration  of  Independ- 
ence was  adopted,  and  look  attentively  at  the  objects  for  which 
the  Congress  had  been  assembled,  and  at  the  nature  of  their  pow- 
ers, we  may  perceive  how  they  came  to  make  the  mistake  of  not 
organizing  a military  establishment  on  a more  permanent  footing. 

The  delegates  to  the  first  Congress  were,  as  has  been  seen, 
sent  with  instructions,  which  were  substantially  the  same  in  all 
the  colonies.  These  instructions,  in  some  instances,  looked  to  “ a 
redress  of  grievances,”  and  in  others,  to  “ the  recovery  and  estab- 
lishment of  the  just  rights  and  liberties  of  the  colonies and  the 
delegates  were  directed  “ to  deliberate  upon  wise  and  proper  meas- 
ures, to  be  by  them  recommended  to  all  the  colonies,”  for  the 
attainment  of  these  objects.  But  with  this  was  coupled  the  de- 
clared object  of  a “restoration  of  union  and  harmony”  upon 
“constitutional  principles.”  We  have  seen  how  far  this  body 
proceeded  towards  a revolution.  The  second,  or  Eevolutionary 
(yongress,  was  composed  of  delegates  who  were  originally  assem- 
bled under  similar  instructions ; but  the  conflict  of  arms  that  had 
already  taken  place,  between  the  times  of  their  respective  appoint- 
ments and  the  date  of  their  meeting,  had  materially  changed  the 


February  9,  177G  (AYorks,  III.  278). 


THE  HEVOLUTIONAK  Y GOVERNMENT. 


43 


posture  of  affairs.  Powers  of  a revolutionary  nature  had  been 
cast  upon  them  by  the  force  of  circumstances ; and  when  they 
finally  resolved  to  take  the  field,  the  character  of  those  ])owers, 
as  understood  and  acted  upon  by  themselves,  is  illustrated  by  the 
commission  which  they  issued  to  their  general -in -chief,  which 
embraced  in  its  scope  the  whole  vast  object  of  “ the  defence  of 
American  liberty,  and  the  repelling  every  hostile  invasion  thereof,” 
by  force  of  arms,  and  “ by  the  rules  and  discipline  of  war,  as  here- 
with given.” 

It  is  obvious,  therefore,  that,  at  the  time  when  the  first  Con- 
tinental army  was  to  be  formed,  the  powers  of  the  revolutionary  ^ 
government  Avere  very  broad,  although  vague  and  uncertain. 
There  seems  to  have  been  no  reason,  upon  principle,  Avhy  they 
should  not  have  adopted  decrees,  to  be  executed  by  their  OAvn 
immediate  agents,  and  by  their  own  direct  force.  But  a prac- 
tical difficulty  embarrassed  and  almost  annulled  this  theoretical 
and  rightful  power.  The  government  of  the  Congress  rested  on 
no  definite,  legislative  faculty.  When  they  came  to  a resolution, 
or  vote,  it  constituted  only  a voluntary  compact,  to  which  the 
people  of  each  colony  pledged  themselves,  by  their  delegates,  as 
to  a treaty,  but  which  depended  for  its  obserA^ance  entirely  on  the 
patriotism  and  good  faith  of  the  colony  itself.  No  means  existed 
of  compelling  obedience  from  a delinquent  colony,  and  the  gov- 
ernment  Avas  not  one  Avhich  could  operate  directly  upon  individ- 
uals, unless  it  assumed  the  full  exercise  of  poAvers  derh^ed  from 
the  reA^olutionary  objects  at  Avhich  it  aimed.  These  poAA^ers  Avere 
not  assumed  and  exercised  to  their  full  extent,  for  reasons  pecul- 
iar to  the  situation  of  the  country,  and  to  the  character,  habits, 
and  feelings  of  the  people. 

The  people  of  the  colonies  had  indeed  sent  their  delegates  to 
a congress,  to  consult  and  determine  upon  the  measures  neces- 
sary to  be  adopted  in  order  to  assert  and  maintain  their  rights. 

But  they  had  never  been  accustomed  to  any  machinery  of  gOA^- 
ernment,  or  legislation,  other  than  that  existing  in  their  oAvn 
separate  jurisdictions.  They  had  imparted  to  the  Congress  no  / 
proper  legislati\^e  authority,  and  no  civil  poAvers,  except  those  oC 
a revolutionary  character.  This  revolutionary  goA^ernment  AA^as 
therefore  entirely  Avithout  cIauI  executiA^e  officers,  fundamental 
laAA's,  or  legal  control  oA^er  indiAuduals  ; and  the  union  of  the 

< 


44  CONSTITUTIONAL  HISTORY. 

colon iGS,  so  far  as  a union  had  taken  place,  was  one  from  which 
any  colony  could  withdraw  at  any  time,  without  violating  any 
legal  obligation. 

In  addition  to  this,  the  popular  feeling  on  the  subject  of  the 
grievances  existing,  and  of  the  measures  that  ought  to  be  taken 
for  redress,  was  quite  different  in  the  different  colonies,  before 
the  Declaration  of  Independence  was  adopted.  The  leading  pa- 
triotic or  Whig  colonies  made  common  cause  with  each  other,  with 
great  spirit  and  energy,  and  the  more  lukewarm  followed,  but 
Avith  unequal  steps.^  Yirginia  had,  upon  the  Avhole,  less  to  com- 
plain of  than  Massachusetts ; but  she  adopted  the  Avhole  quarrel 
of  her  Northern  sister,  with  the  firmness  of  her  Washington  and 
the  ardor  of  her  Henry.  New  York,  on  the  other  hand,  for  a 
considerable  period,  and  down  to  the  month  of  January,  1(15, 
stood  nearly  divided  betAveen  the  Whigs  and  the  Tories,  and  did 
not  choose  its  delegates  to  the  second  Congress  until  the  20th  of 
April tAventy  days  only  before  that  body  assembled." 

One  of  the  most  striking  illustrations,  both  of  the  character 
of  the  revolutionary  government  and  of  the  state  of  the  country, 
is  presented  by  the  proceedings  respecting  the  Loyalists,  or,  as 


1 Mr.  Jefferson  once  said  to  my  kinsman,  Mr.  George  Ticknor,  that  when 
they  had  any  doubtful  and  difficult  measure  to  carry  in  this  Congress,  they 
counted  the  four  New  England  colonies  and  Virginia  as  sure;  and  then  they 
looked  r.ound  to  see  where  they  could  get  two  more,  to  make  the  needful  ma- 
iority. 

2 The  General  Assembly  of  New  York  met  on  the  10th  of  January,  1 < 7o, 
and  by  a small  majority  refused  to  approve  of  the  nou-importation  association 
formed  by  the  first  Congress,  and  also  declined  to  appoint  delegates  to  the  sec- 
ond Congress,  Avhich  was  to  assemble  in  May.  They  adopted,  however,  a list 
of  grievances,  which  was  substantially  the  same  with  that  which  had  been  put 
forth  by  the  first  Congress.  Towards  the  close  of  the  session,  in  the  absence  ot 
some  of  the  patriotic  members,  petitions  to  the  king  and  to  Parliament  ^verc 
adopted,  which  differed  somewhat  from  the  principles  contained  in  their  list  of 
orievances,  and  in  which  they  disapproved  ‘‘  of  the  violent  measures  that  had 
been  pursued  in  some  of  the  colonies.”  But  the  people  of  New  York  generally 
conformed  to  the  non-importation  agreement;  and  on  the  20th  of  April  they 
met  in  convention  and  appointed  delegates  to  the  second  Congress,  “to  concert 
and  determine  upon  such  matters  as  shall  be  judged  most  advisable  for  the  pres- 
ervation and  re-establishment  of  American  rights  and  privileges.”  Pitkiifis 
History  of  the  United  States,  I.  324. 


THE  IlEVOLUTIONAKY  GOVERNMENT.  45 

tliey  were  called,  the  Tories.  This  is  not  the  ])lacc  to  consider 
whether  the  American  Loyalists  were  right  or  wrong  in  adhering 
to  the  crown.  Ample  justice  is  likely  to  he  done,  in  American 
history,  to  the  characters  and  motives  of  those  among  them 
whose  characters  and  motives  were  pure.  From  a sense  of  duty, 
or  from  cupidity,  or  from  some  motive,  good  or  bad,  they  made 
their  election  to  adhere  to  the  public  enemy;  and  they  were, 
therefore,  rightfully  classed,  according  to  their  personal  activity 
and  importance,  among  the  enemies  of  the  country,  by  those 
whose  business  it  was  to  conduct  its  affairs  and  to  fight  its  bat- 
tles. Washington  was,  at  a very  early  period,  of  opinion  that 
the  most  decisive  steps  ought  to  be  taken  with  these  persons; 
and  he  seems  at  first  to  have  acted  as  if  it  belonged,  as  in  fact  it 
did  properly  belong,  to  the  commander  of  the  Continental  forces 
to  determine  when  and  how  they  should  be  arrested.  He  first 
had  occasion  to  act  upon  the  subject  in  November,  1775,  when  he 
sent  Colonel  Palfrey,  one  of  his  aides,  into  Hew  Hampshire,  with 
orders  to  seize  every  officer  of  the  royal  government  who  had 
given  proofs  of  an  unfriendly  disposition  to  the  American  cause, 
and  when  he  had  secured  them,  to  take  the  opinion  of  the  Provin- 
cial Congress,  or  Committee  of  Safety,  in  Avhat  manner  to  dis- 
pose of  them  in  that  province.’ 

Early  in  the  month  of  January,  1776,  Washington  was  led  to 
suppose  that  the  enemy  were  about  to  send  from  Boston  a secret 
expedition  by  water,  for  the  purpose  of  taking  possession  of  the 
city  of  Hew  York ; and  it  was  believed  that  a body  of  Tories  on 
Long  Island,  where  they  were  numerous,  were  about  rising,  to 
join  the  enemy’s  forces  on  their  arrival.  While  Washington  was 
deliberating  whether  he  should  be  warranted  in  sending  an  expe- 
dition to  check  this  movement  and  to  prevent  the  city  from  fall- 
ing into  the  hands  of  the  enemy,  without  first  applying  to  Con- 
gress for  a special  authority,  he  received  a letter  from  Major- 

‘‘I  do  not  mean,”  the  orders  continued,  “that  they  should  be  kept  in  close 
confinement.  If  eitiier  of  these  bodies  should  incline  to  send  them  to  any 
interior  towns,  upon  their  parole  not  to  leave  them  until  tliey  are  I’eleased,  it 
will  meet  with  my  concurrence.  For  the  present,  I shall  avoid  giving  you  the 
like  order  in  respect  to  the  Tories  in  Portsmouth  ; but  the  day  is  not  far  off 
when  they  will  meet  with  this,  or  a worse  fate,  if  there  is  not  a considerable 
reformation  in  their  conduct.”  Writings  of  Washington,  III.  158,  159. 


4G  CONSTITUTIONAL  HISTORY. 

General  Charles  Lee,  offering  to  go  into  Connecticut  to  raise 
volunteers,  and  to  march  to  tlie  neighborhood  of  New  York,  for 
the  purpose  of  securing  the  city  and  suppressing  the  anticipated 
insurrection  of  the  Tories.'  lie  was  inclined  to  adopt  Lee  s sug- 
gestion, but  doubted  whether  he  had  power  to  disarm  the  people 
of  an  entire  district,  as  a military  measure,  without  the  action  of 
the  civil  authority  of  the  province.  Upon  this  point  he  con- 
sulted Mr.  John  Adams,  who  was  then  attending  the  Provincial 
Congress  of  Massachusetts.  Mr.  Adams  gave  it,  unhesitatingly, 
as  his  clear  opinion,  that  the  commissiou  of  the  commander-in- 
chief extended  to  the  objects  proposed  in  General  Lee  s letter , 
and  he  reminded  Washington  that  it  vested  in  him  full  power 
and  authority  to  act  as  he  should  think  for  the  good  and  welfare 
of  the  service."  Lee  w^as  thereupon  authorized  to  raise  volunteers 
and  to  proceed  to  the  city  of  New  York,  which  he  was  instructed 
to  prevent  from  falling  into  the  hands  of  the  enemy,  by  putting 
it  into  the  best  posture  of  defence  and  by  disarming  all  persons 
upon  Long  Island  and  elsewhere  (and,  if  necessary,  by  otherwise 
securing  them),  whose  conduct  and  declarations  had  rendered 
them  justly  suspected  of  designs  unfriendly  to  the  views  of  the 
Congress."  At  the  same  time  Washington  wrote  to  the  Commit- 
tee of  Safety  of  New  York,  informing  them  of  the  instructions 
which  he  had  given  to  General  Lee,  and  requesting  their  assist- 
ance ; but  without  placing  Lee  under  their  authority. 

It  happened  that,  at  this  time,  while  Washington  was  consid- 
ering the  expediency  of  sending  this  expedition,  the  Congress 
had  under  consideration  the  subject  of  disarming  the  Tories  in 
Queen’s  County,  Long  Island,  where  the  people  had  refused  to 
elect  members  to  the  Provincial  Convention."  Two  battalions 


’ Writings  of  Washington,  III.  280,  note. 

2 Wiitings  of  Washington,  III.  230,  note.  See  also  Marshall’s  Life  of  Wash- 
ington, II.  285-387. 

3 Writings  of  Washington,  III.  230. 

^ Ibid.,  note. 

5 Journals  of  Congress,  II.  7-9,  January  3, 1776.  Congress  had,  on  the  2d  of 
January  passed  resolves  recommending  to  the  different  assemblies,  conventions, 
and  committees  or  councils  of  safety  to  restrain  the  Tories,  and  had  declared 
that  they  ought  to  be  disarmed,  and  the  more  dangerous  of  them  kept  in  cus- 


THE  KEVOLUTIONAKY  GOVERNMENT. 


47 


of  minute-men  had  been  ordered  to  enter  that  county,  at  its  op- 
])osite  sides,  on  the  same  day,  and  to  disarm  every  inliabitant  wlio 
liad  voted  against  choosing  members  to  the  convention.’  A part 
of  these  orders  were  suddenly  countermanded,  and  in  place  of  the 


tody.  For  this  purpose  the  aid  of  the  Continental  troops  stationed  in  or  near 
tlie  respective  colonies  was  tendered  to  the  local  authorities.  Journals,  II.  4,  5. 

' The  resolves  of  the  Congress  on  tliis  subject  amounted  to  an  outlawry  of 
tlie  persons  against  whom  they  were  directed.  They  were  introduced  by  a pre- 
amble, reciting  the  disatfection  of  a majority  of  the  inhabitants  of  Queen’s 
County,  evinced  by  their  refusal  to  elect  deputies  to  the  convention  of  the  col- 
ony, by  their  public  declaration  of  a design  to  remain  inactive  spectators  of  the 
contest,  and  their  general  want  of  public  spirit;  and  declaring  that  “those  who 
refuse  to  defend  their  country  should  be  excluded  from  its  protection,  and  pre- 
vented from  doing  it  injury.”  The  first  resolve  then  proceeded  to  declare  that 
all  the  inhabitants  of  Queen’s  County  named  in  a list  of  delinquents  published 
by  the  Convention  of  New  York  be  put  out  of  the  protection  of  the  United  Col- 
onies, that  all  trade  and  intercourse  with  them  cease,  and  that  no  inhabitant  of 
that  county  be  permitted  to  travel  or  abide  in  any  part  of  the  United  Colonies, 
out  of  that  county,  without  a certificate  from  the  Convention  or  Committee  of 
Safety  of  New  York,  setting  forth  that  such  inhabitant  is  a friend  to  the  Ameri- 
can cause,  and  not  of  the  number  of  those  who  voted  against  sending  deputies 
to  the  convention;  and  that  any  inhabitant  found  out  of  the  county,  without 
such  certificate,  be  apprehended  and  imprisoned  three  months.  The  second 
resolve  declared  that  any  attorney  or  lawyer  who  should  commence,  prosecute, 
or  defend  any  action  at  law,  for  any  inhabitant  of  Queen’s  County  who  voted 
against  sending  deputies  to  the  convention,  ought  to  be  treated  as  an  enemy  to 
the  American  cause.  The  fourth  resolve  directed  that  Colonel  Nathaniel  Heard, 
of  Woodbridge,  N.  J.,  should  march,  with  five  or  six  hundred  minute-men,  to 
the  western  part  of  Queen’s  County,  and  that  Colonel  Waterbury,  of  Stamford, 
Connecticut,  with  tlie  same  number  of  minute-men,  march  to  the  eastern  side; 
that  they  confer  together  and  endeavor  to  enter  the  county  on  the  same  day, 
and  that  they  proceed  to  disarm  every  person  in  the  county  who  voted  against 
sending  deputies  to  the  convention,  and  cause  them  to  deliver  up  their  arms 
and  ammunition  on  oath,  and  confine  in  safe  custody,  until  further  orders,  all 
tliose  who  should  refuse  compliance.  These  resolves  were  passed  on  the  3d  of 
January,  1776,  and  were  reported  by  a committee  on  the  state  of  New  York. 
On  the  10th  of  January,  on  account  of  “the  great  distance  from  Colonel  Heard 
to  Colonel  Waterbury,  and  the  difficulty  of  co-operating  with  each  other  in  their 
expedition  into  Queen’s  County,”  Congress  directed  Lord  Stirling  to  furnish 
Colonel  Heard  with  three  companies  from  his  command,  who  were  to  join  Col- 
onel Heard  with  his  minute-men,  and  proceed  immediately  on  the  expedition; 
and  also  directed  Heard  to  inform  Waterbury  that  his  services  would  not  be 
required.  Journals,  II.  21. 


48 


CONSTITUTIONAL  HISTORY. 


minutc-mcn  from  Connecticut,  three  companies  were  ordered  to 
be  detailed  for  this  service  from  the  command  of  Lord  Stirling. 
This  change  in  tlie  original  plan  was  made  on  the  10th  of  Janu- 
ary ; and  when  Washington  received  notice  of  it  from  Lee,  he 
seems  to  have  understood  it  as  an  abandonment  of  the  whole 
scheme  of  the  expedition— a course  which  he  deeply  regretted.' 
lie  thought  that  the  period  had  arrived  when  nothing  less  than 
the  most  decisive  measures  ought  to  be  pursued ; that  the  ene- 
mies of  the  country  were  sufficiently  numerous  on  the  other  side 
of  the  Atlantic,  and  that  it  was  highly  important  to  have  as  few 
internal  ones  as  possible.  But  supposing  that  Congress  had 
changed  their  determination,  he  directed  Lee  to  disband  his  troops 
so  soon  as  circumstances  would  in  his  judgment  admit  of  it. 
Lee  was  at  this  time  at  Stamford  in  Connecticut,  with  a body  of 
about  twelve  hundred  men,  whom  he  had  raised  m that  colony, 
preparing  to  march  to  New  York  to  execute  the  different  pur- 
poses for  which  he  had  been  detached.  On  the  22d  of  January— 
the  day  before  the  date  of  Washington’s  letter  to  him  directing 
him  to  disband  his  forces — he  had  ivritten  to  the  President  of 
Conirress,  urging  in  the  strongest  terms  the  expediency  of  seizing 
and  “disarming  the  Tories;"  and  he  immediately  communicated 
Washington  the  fact  of  his  having  done  so.  Washington 
wrote  again  on  the  30th,  informing  Lee  that  General  Clinton  had 
gone  from  Boston  on  some  expedition  with  four  or  five  hundred 
men ; that  there  was  reason  to  believe  that  this  expedition  had 
• been  sent  on  the  application  of  Tryon,  the  royal  governor  of  New 
York,  who,  with  a large  body  of  the  inhabitants,  would  probably 
join  it ; and  that  the  Tories  ought,  therefore,  to  be  disarmed  at 
once,  and  the  principal  persons  among  them  seized.  He  also 
expressed  the  hope  that  Congress  would  empower  General  Lee 
to  act  conformably  to  both  their  wishes;  but  that,  if  they  should 
order  differently,  their  directions  must  be  obeyed.* 


' He  received  this  imiiression  from  General  Lee,  wlio  wrote  on  the  16th  of 
January  and  informed  him  that  Colonel  Waterbmy  Imd  “received  orders  to 
disband  his  regiment,  and  tlie  Tories  are  to  remain  unmolested  till  tl.ey  are 
ioined  by  the  king’s  assassins.”  Sparks’s  Life  of  Gouvcrneur  Morns,  I.  75. 

» Letter  to  General  Lee,  January  23, 1770.  Writings  of  Washington,  III.  2o5. 
3 Marshall’s  Life  of  Washington,  II.  Appendix,  xvii. 

* Letter  to  General  Lee,  January  31, 1770.  Writings  of  Wasliington,  III.  375. 


THE  liE  VOLUTIONAU  Y GOVEUA’MENT. 


4t) 

AViisliingtoii  was  mistaken  in  supposing  that  Congress  had 
resolved  to  abandon  the  expedition  against  the  Tories  of  (Queen’s 
County.  That  exj)edition  had  actually  })enetrated  the  county, 
under  (Colonel  Heard,  who  had  arrested  nineteen  of  the  principal 
inhabitants  and  conducted  them  to  Philadelphia.  Congress  di- 
rected them  to  be  sent  to  New  York,  and  delivered  to  the  order 
of  the  convention  of  that  colony,  until  an  inquiry  could  be  insti- 
tuted by  the  Convention  into  their  conduct,  and  a report  thereon 
made  to  Congress.' 

This  destination  of  the  prisoners  had  become  necessary,  in 
consequence  of  the  local  fears  and  jealousies  excited  by  the  ap- 
proach of  General  Lee  to  the  city  of  New  York,  at  the  head  of  a 
force  designed  to  prevent  it  from  falling  into  the  possession  of 
the  enemy.  The  inhabitants  of  the  city  were  not  a little  alarmed 
at  the  idea  of  its  becoming  a post  to  be  contended  for ; and  the 
Committee  of  Safety  wrote  to  General  Lee  earnestly  deprecating 
his  ap23roach.^  Lee  replied  to  them,  and  continued  his  march, 
enclosing  their  letter  to  Congress.  It  was  received  in  that  body 
on  the  26th,  and  a committee  of  three  members  was  immediately 
appointed  to  repair  to  New  York,  to  consult  and  advise  with  the 
Council  of  Safety  of  the  Colony,  and  vrith  General  Lee,  respecting 
the  defence  of  the  city."  The  Provincial  Congress  of  New  York 
were  in  session  at  the  time  of  the  arrival  of  this  committee,'  and, 
in  consequence  of  the  temper  existing  in  that  body  and  in  the 
local  committees,  the  Continental  Congress  found  themselves 
obliged  to  recede  from  the  course  which  they  had  taken  of  dis- 
arming the  Tories  of  Queen’s  County  by  their  own  action,  and  to 
submit  the  whole  subject  again  to  the  colonial  authorities  every- 
Avhere,  by  a mere  recommendation  to  them  to  disarm  all  persons, 
within  their  respective  limits,  notoriously  disaffected  to  the  Amer- 
ican cause.  ^ 

Thus,  after  having  resolved  on  the  performance  of  a high  act 
of  sovereignty,  which  Avas  entirely  Avithin  the  true  scope  of  their 


‘ ^ February  6, 1776.  Journals,  II.  51. 

Sparks’s  Life  of  Gouverneur  Morris,  I.  75,  76.  They  wislied  to  “save  ap- 
pearances with  the  [enemy’s]  ships  of  war,  till  at  least  tlie  month  of  March.” 
^January  26, 1776.  Journals,  II.  39.  ^ January  30. 

^ March  14, 1776.  Journals,  II.  91. 

I.-4 


50 


CONSTITUTIONAL  HISTORY. 


revolutionary  powers,  and  eminently  necessary,  the  Congress  was 
obliged  to  content  itself  with  a recommendation  on  the  subject 
to  the  colonial  authorities  ; not  only  because  it  felt  itself,  as  a 
government,  far  from  secure  of  the  popular  co-operation  in  many 
parts  of  the  country,  but  because  it  had  not  finally  severed  the 
political  tie  which  had  bound  the  country  to  the  crown  of  Great 
Britain,  and  because  it  had  no  civil  machinery  of  its  own,  through 
which  its  operations  could  be  conducted. 

Another  topic,  which  illustrates  the  character  of  the  early 
revolutionary  government,  is  the  entire  absence,  at  the  period 
now  under  consideration,  of  a proper  national  tribunal  for  the 
determination  of  questions  of  prize— a want  w^hich  gave  Wash- 
ington great  trouble  and  embarrassment  during  his  residence  at 
Cambridge  and  for  some  time  afterwards.  As  this  subject  is 
connected  with  the  origin  of  the  American  navy,  a brief  account 
may  here  be  given  of  the  commencement  of  naval  operations  by 
the  United  Colonies. 

When  Washington  arrived  at  Cambridge  no  steps  had  been 
taken  by  the  Continental  Congress  towards  the  employment  of 
any  naval  force  whatever.  In  June,  1775,  two  small  schooners 
had  been  fitted  out  by  Khode  Island  to  protect  the  waters  of 
that  colony  from  the  depredations  of  the  enemy;  and  in  the  same 
month  the  Provincial  Congress  of  Massachusetts  resolved  to  pro- 
vide six  armed  vessels ; but  none  of  them  were  ready  in  the  month 
of  October.'  In  the  early  part  of  that  month  the  first  movement 
was  made  by  the  Continental  Congress  towards  the  employment 
of  a naval  force.  Washington  was  then  directed  to  fit  out  two 
armed  vessels,  with  all  possible  despatch,  to  sail  for  the  mouth 
of  the  St.  Lawrence,  in  order  to  intercept  certain  ships  from 
England  bound  to  Quebec  with  powder  and  stores.  He  was 
to  procure  these  vessels  from  the  government  of  Massachusetts. 
The  authorities  of  Massachusetts  had  then  made  no  such  provision ; 
but  in  the  latter  part  of  August  W ashington  had,  on  the  broad 
authority  of  his  commission,  proceeded  to  fit  out  six  armed  schoon- 
ers to  cruise  in  the  waters  of  Massachusetts  Bay,  so  as  to  intercept 


’ Letter  of  Washington  to  the  President  of  Congress. 

Resolve  passed  October  5, 1775.  Journals  of  Congress,  II.  197. 


THE  REVOLUTIONARY  GOVERNMENT. 


51 


the  enemy’s  supplies  coming  into  tlie  port  of  Boston.  One  of  theiri 
sailed  in  Se})tember,  and  in  the  course  of  a few  weeks  they  were 
all  cruising  between  Cape  Ann  and  Cape  Cod.' 

On  the  17th  of  September,  1775,  the  town  of  Falmouth,  in 
Massachusetts  (now  Portland,  in  ]Maine),  was  burned  by  the  ene- 
my. This  act  stimulated  the  Continental  Congress  to  order  the 
tittinir  out  of  two  armed  vessels  on  the  26th  of  October,  and  of 
two  others  on  the  30th.  It  also  stimulated  the  Massachusetts 
Assembly  to  issue  letters  of  marque  and  reprisal,  and  to  pass  an 
act  establishing  a court  to  try  and  condemn  all  captures  made 
from  the  enemy  by  the  privateers  and  armed  vessels  of  that  colony. 

In  the  autumn  of  this  year,  therefore,  there  were  two  classes 
of  armed  vessels  cruising  in  the  waters  of  Massachusetts : one  con- 
sisting of  those  sailing  under  the  continental  authority,  and  the 
other  consisting  of  those  sailing  under  the  authority  of  the  Mas- 
sachusetts Assembly.  Captures  were  made  by  each,  and  some  of 
those  sailing  under  the  continental  authority  were  quite  success- 
ful. Captain  Manly,  commanding  the  Lee^  took,  in  the  latter  part 
of  ISTovember,  a valuable  prize,  with  a large  cargo  of  arms,  ammu- 


^ These  vessels  were  fitted  out  from  the  ports  of  Salem,  Beverly,  Marblehead, 
and  Plymouth.  They  -were  otficered  and  manned  chiefly  by  sea-captains  and  sailors 
who  happened  to  be  at  that  time  in  the  army.  They  sailed  under  instructions 
from  Washington,  to  take  and  seize  all  vessels  in  the  ministerial  service  bound 
into  or  out  of  Boston  having  soldiers,  arms  and  ammunition,  or  provisions  on 
board,  and  to  send  them  into  the  nearest  port,  under  a careful  prize-master,  to 
wait  his  further  directions.  The  first  person  commissioned  in  this  way  by  the 
commander-in-chief  was  Captain  Nicholas  Broughton,  of  Marblehead,  who  sailed 
in  the  schooner  Hannah^  fitted  out  at  Beverly ; and  in  his  instructions  he  was 
described  as  “ a captain  in  the  army  of  the  United  Colonies  of  North  America,” 
and  was  directed  to  take  the  command  of  “ a detachment  of  said  army,  and  pro- 
ceed on  board  the  schooner  Hannah^  lately  fitted  out,  etc.,  at  the  continental 
expense.”  Another  of  these  vessels,  called  the  Lee^  was  commanded  by  Captain 
John  Manly.  The  names  of  three  others  of  them  were  the  Harrison^  the  Wash- 
ington^ and  the  Lynch.  The  name  of  the  sixth  vessel  is  not  known,  but  the  names 
of  the  four  other  captains  were  Selman,  Martinclale,  Coit,  and  Adams  (Writ- 
ings of  Washington,  III.  516).  When  Washington  received  directions  from  the 
President  of  Congress  to  send  two  vessel^  to  the  mouth  of  the  St.  Lawrence,  he 
wrote,  on  the  12th  of  October,  that  one  of  these  vessels  was  then  out,  and  that 
two  of  them  would  be  despatched,  as  directed,  immediately  (Ibid.,  III.  124).  In 
the  course  of  a few  weeks  they  were  all  out. 


52 


CONSTITUTIONAL  HISTOKY. 


nition,  and  military  tools;  and  several  other  captures  followed 
before  any  provision  had  been  made  for  their  condemnation  — 
a business  Avhich  was  thus  thrown  entirely  upon  the  hands  of 
Washington. 

The  court  established  by  the  Legislature  of  Massachusetts,  at 
its  session  in  the  autumn  of  1775,  for  the  trial  and  condemnation 
of  all  captures  from  the  enemy,  was  enabled  to  take  cognizance 
only  of  captures  made  by  vessels  fitted  out  by  the  province  or  by 
citizens  of  the  province.  As  the  cruisers  fitted  out  at  the  conti- 
nental expense  did  not  come  under  this  law,  Washington,  early 
in  November,  called  the  attention  of  Congress  to  the  neces- 
sity of  establishing  a court  for  the  trial  of  prizes  made  by  con- 
tinental authority. ‘ On  the  25th  of  November  the  Congress 

passed  resolves  ordering  all  trials  of  prizes  to  be  held  in  the  court 
of  the  colony  into  which  they  should  be  brought,  with  a right  of 
appeal  to  Congress.^  But  these  resolves  do  not  seem  to  have  been, 
for  a considerable  period  of  time,  communicated  to  Washington ; 
for,  during  the  months  of  November,  December,  and  January, 
he  supposed  it  to  be  necessary  for  him  to  attend  personally  to 
the  adjudication  of  prizes  made  by  continental  vessels,®  and  it 
was  not  until  the  early  part  of  February  that  the  receipt  of  the 
resolves  of  Congress  led  to  a resort  to  the  jurisdiction  of  the  Admi- 
ralty Court  of  Massachusetts.  When,  however,  this  was  done,  an 
irr^pncilable  difference  was  found  to  exist  between  the  resolves 
pT  Congress  and  the  laws  of  the  colony  respecting  the  proceedings ; 
the  trials  were  stopped  for  a long  time,  to  enable  the  General 


1 Letter  to  the  President  of  Congress,  November  11, 1775.  (Writings  of  Wash- 
ington, III.  154.) 

^ Journals,  I.  260. 

3 On  the  4th  of  December  he  repeated  his  former  recommendation  to  the  Pres- 
ident of  Congress  (Writings  of  Wasliington,  III.  184).  On  the  2Gth  of  Decem- 
ber he  wrote  to  Ricliard  Henry  Lee,  in  Congress,  begging  him  to  use  his  influence 
in  having  a court  of  admiralty  or  some  power  appointed  to  hear  and  determine 
all  matters  relative  to  captures,  saying,  “ You  cannot  conceive  how  I am  plagued 
on  this  head,  and  how  impossible  it  is  for  me  to  hear  and  determine  upon  mat- 
ters of  this  sort,  when  the  facts,  perhaps,  are  only  to  be  ascertained  at  ports  forty, 
fifty,  or  more  miles  distant,  witliout  bringing  the  parties  here  [Cambridge]  at 
great  trouble  and  expense.  At  any  rate,  my  time  will  not  allow  me  to  be  a 
competent  judge  of  this  business.”  Ibid.,  III.  217. 


THE  REVOLUTIONAKY  GOVERNMENT.  53 

Court  of  IVIassacliusetts  to  alter  their  law  so  as  to  make  it  conform 
fotlie  resolves  ; and  in  the  meanwhile  many  of  the  captors,  weary 
oC  the  law’s  delay,  applied,  without  waiting  for  the  decisions, 
for  leave  to  go  away,  which  Wasliington  granted.*  As  late  as 
the  25th  of  April,  1776,  there  had  been  no  trials  of  any  of  the 
prizes  brought  into  Massachusetts  Bay.  At  that  date  Washing- 
ton wrote  to  the  President  of  Congress,  from  New  York,  that 
some  of  the  vessels  which  he  had  fitted  out  were  laid  up,  the 
crews  being  dissatisfied  because  they  could  not  obtain  their  prize- 
money  ; that  he  had  appealed  to  the  Congress  on  the  subject ; and 
that,  if  a summary  way  of  proceeding  were  not  resolved  on,  it 
would  be  impossible  to  have  the  continental  vessels  manned.  At 
this  time  Captain  Manly  and  his  crew  had  not  received  their  share 
of  the  valuable  prize  taken  by  them  in  the  autumn  previous."* 

Another  remarkable  defect  in  the  revolutionary  government 
was  found  in  the  mode  in  which  it  undertook  to  supply  the  means 
of  defraying  the  public  expenses.  It  was  a government  entirely 
without  revenues  of  any  kind ; for,  in  constituting  the  Congress, 
the  colonies  had  not  clothed  their  delegates  with  power  to  lay 
taxes  or  to  establish  imposts.  At  the  time  when  hostilities  were 
actually  commenced  tiie  commerce  of  the  country  was  almost  to- 
tally annihilated ; so  that  if  the  Congress  had  possessed  j^ower  to 
derive  a revenue  from  commerce,  little  could  have  been  obtained 
for  a long  period  after  the  commencement  of  the  war.  But  the 
power  did  not  exist ; money  in  any  considerable  quantity  could 
not  be  borrowed  at  home;  the  expedient  of  foreign  loans  had 
not  been  suggested ; and  consequently  the  only  remaining  expe- 
dient to  which  the  Congress  could  resort  was,  like  other  gov- 
ernments similarly  situated,  to  issue  paper  money.  The  mode  in 
which  this  was  undertaken  to  be  done  was,  in  the  first  instance, 
to  issue  two  millions  of  Spanish  milled  dollars,  in  the  form  of  bills 
of  various  denominations,  from  one  dollar  to  eight  dollars  each, 
and  a few  of  twenty  dollars,  designed  for  circulation  as  currency. 
The  whole  number  of  bills  which  made  up  the  sum  of  $2,000,000 


’ Letter  to  the  President  of  Congress,  February  9,  1776.  Ibid.,  III.  282. 
Letter  to  Joseph  Reed,  February  10,  1776.  Ibid.,  III.  284. 

2 Ibid.,  III.  370. 


54 


CONSTITUTIONAL  HISTORY. 


was  403,800.’  The  next  emission  amounted  to  $1,000,000,  in  hills 
of  thirty  dollars  each,  and  was  ordered  on  the  25th  of  July.’’ 
When  the  bills  of  the  first  emission  were  jirepared  it  would  seem 
to  have  been  the  practice  to  have  them  signed  by  a comirdttee  of 
the  members ; but  this  was  found  so  inconvenient,  from  the  length 
of  time  during  which  it  withdrew  the  members  from  the  other 
business  of  Congress,  that,  when  the  second  emission  was  ordered, 
a committee  of  twenty-eight  citizens  of  Philadelphia  \\  as  appointed 
for  the  purpose,  and  the  bills  were  ordered  to  be  signed  by  any 
two  of  them."  At  this  time  no  continental  treasurers  had  been 
appointed.' 

Such  a clumsy  machinery  was  poorly  adapted  to  the  supply  of 
a currency  demanded  by  the  pressing  wants  of  the  army  and  of 
the  other  branches  of  the  public  service.  The  signers  of  the  bills 
were  extremely  dilatory  in  their  work.  In  September,  1775,  the 
paymaster  and  commissary,  at  Cambridge,  had  not  a single  dollar 
in  hand,  and  they  had  strained  their  credit,  for  the  subsistence  of 
the  army,  to  the  utmost ; the  greater  part  of  the  troops  were  in  a 
state  not  far  from  mutiny,  in  consequence  of  the  deduction  which 
had  been  made  from  their  stated  allowance ; and  there  was  immi- 
nent danger,  if  the  evil  were  not  soon  remedied,  and  greater  punc- 
tuality observed,  that  the  army  would  absolutely  break  up.  In 
November  Washington  deemed  it  highly  desirable  to  adopt  a sys- 
tem of  advanced  pay,  but  the  unfortunate  state  of  the  military 
chest  rendered  it  impossible.  There  was  not  cash  sufficient  to  pay 
the  troops  for  the  months  of  October  and  November.  Through 


’ This  was  the  emission  ordered  on  the  23d  of  June,  1775.  There  forty- 
nine  thousand  bills  of  each  denomination  from  one  dollar  to  eight  dollars,  inclu- 
sive, and  eleven  thousand  eight  hundred  bills  of  the  denomination  of  twenty  dol- 
lars. The  form  of  the  bills  was  as  follows  (Journals,  I.  126) ; 

Continental  Currency. 

No.  Dollars. 

This  Bill  entitles  the  Bearer  to  receive  Spanish  milled 

Dollars,  or  the  value  thereof  in  Gold  or  Silver,  according  to  the  Resolutions  of 
the  Congress,  held  at  Philadelphia  on  the  10th  day  of  May,  A.D.  1775. 

2 Journals,  I.  177. 

^ Journals,  I.  126,  177.  The  signers  of  the  bills  were  allowed  a commission 
of  one  dollar  and  one  third  of  a dollar  on  each  thousand  of  the  bills  signed  by 
them.  Ibid.  ' * Ante,  p.  22. 


THE  REVOLUTIONARY  GOVERNMENT.  55 

the  inontlis  of  December  and  January  the  signing  of  tlie  bills  did 
not  kee[)  pace  with  tlie  demands  of  tlie  army,  notwithstanding 
Washington’s  urgent  remonstrances ; and  in  February  his  Avants 
ber’auie  so  pressing  tliat  he  Avas  obliged  to  borroAv  twenty-fiA^e 
thousand  pounds  of  tlie  Province  of  Massachusetts  Bay,  in  order 
that  the  recruiting  service  might  not  totally  cease.' 

These  facts  shoAV  significantly  that,  before  the  Declaration  of 
Independence,  scarcely  any  progress  had  been  made  toAvards  the 
formation  of  a national  government  Avith  definite  po Avers  and  ap- 
propriate departments.  In  matters  of  judicature  and  in  measures 
requiring  executive  functions  and  authority  the  Congress  Avere 
obliged  to  rely  almost  entirely  upon  the  local  institutions  and  the 
local  civil  machinery  of  the  different  colonies ; Avhile,  in  all  mili- 
tary affairs,  the  very  form  of  the  revolutionary  government  Avas 
unfavorable  to  vigor,  despatch,  and  consistent  method.  There 
Avere  also  causes  existing  in  the  temper  and  feelings  of  many  of 
the  members  of  that  government,  both  before  and  after  the  Dec- 
laration of  Independence,  Avhich  at  times  prevented  the  majority 
from  acting  Avith  the  decision  and  energy  demanded  by  the  state 
of  their  affairs.  Many  excellent  and  patriotic  men  in  the  Con- 
gress of  1TT5-6,  Avhile  they  concurred  fully  in  the  necessity  for 
resistance  to  the  measures  of  the  British  ministry,  and  had  decided, 
or  Avere  fast  deciding,  that  a separation  must  take  place,  still  en- 
tertained a gr^t  jealousy  of  standing  armies.  This  jealousy  began 
to  exhibit^TfseTf^^y  soon  after  the  appointment  of  the  command- 
er-in-chief, and  Avas  never  Avholly  Avithout  influence  in  the  proceed- 
ings of  Congress  during  the  entire  period  of  the  Avar.  It  led  to  a 
degree_^f  reliance  upon  militia  Avhich,  in  the  situation  of  the  colo- 
nies, AA\as  too  often  demonstrated  to  be  a Aveak  and  fatal  policy." 


1 Writings  of  Washington,  III.  104, 167, 173, 178,  283. 

2 Writings  of  Washington,  III.  278,  IV.  115,  V.  328.  Mr.  Sparks  has  pre- 
served an  anecdote  which  show’s  the  perpetuation  of  tliis  feeling  about  standing 
armies,  and  evinces  also  that  Wasliington  possessed  more  humor  than  has  been 
generally  attributed  to  him.  In  the  convention  for  forming  the  Constitution  of 
the  United  States,  some  member  proposed  to  insert  a clause  in  tlie  Constitution 
limiting  the  army  of  the  United  States  to  Jive  thousand  men.  Washington,  who 
was  in  the  chair,  observed  tliat  he  should  not  object  to  such  a clause  if  it  w’ere 
so  amended  as  to  provide  that  no  enemy  should  ever  presume  to  invade  the 
United  States  wdtli  more  than  three  thousand. 


56 


CONSTITUTIONAL  HISTORY. 


Note  to  page  35. 

ON  THE  DECLARATION  OF  INDEPENDENCE. 

The  Declaration  of  Independence  was  drawn  by  Thomas  Jefferson  ; and  the 
circumstances  under  which  he  was  selected  for  this  honorable  and  important 
task  were  for  some  time  in  doubt,  and  that  doubt  increased  by  the  publication 
of  a part  of  the  Works  of  Mr.  John  Adams.  The  evidence  on  the  subject  is  to 
be  derived  chiefly  from  statements  made  by  both  of  these  eminent  persons  in 
their  memoirs,  and  in  a letter  written  by  each  of  them.  We  have  seen,  in  a 
former  note,  that  in  1822  Mr.  Adams  declared,  that  had  it  not  been  for  a con- 
versation which  occurred  in  1775,  before  the  meeting  of  tlie  Congress  of  that 
year,  between  himself  and  his  Massachusetts  colleagues  and  certain  of  the 
Philadelphia  “Sons  of  Liberty,”  in  which  the  Massachusetts  members  were 
advised  to  concede  precedence  to  Virginia  from  motives  of  policy,  and  but  for 
the  principles,  facts,  and  motives  suggested  in  that  conversation,  many  things 
would  not  have  happened  which  did  occur,  and,  among  them,  that  Mr.  Jefferson 
never  would  have  been  the  author  of  the  Declaration  of  Independence.  In  re- 
gard to  the  same  speculation  concerning  the  election  of  Washington  as  com- 
mander-in-chief, I have  ventured,  on  Mr.  Adams’s  own  authority,  to  suggest 
doubts  whetlier  that  election  ought  now  to  be  considered  to  liave  turned 
upon  motives  which  Mr.  Adams  made  so  prominent  in  1822.  In  regard  to 
the  authorship  of  the  Declaration  of  Independence,  I shall  only  endeavor 
to  state  fairly  and  fully  the  conflicting  evidence,  in  order  that  the  reader 
may  judge  what  degree  of  weight  ouglit  toJhe-assigned  to  tlie  cause,  without 
which  Mr.  Adams  supposed  Mr.  Jefferson  would  not  have  been  selected  to 
draft  it. 

Mr.  Jefferson,  as  it  appeared  when  his  writings  came  to  be  published  in  1829, 
wrote  in  1821,  when  at  the  age  of  seventy-seven,  a memoir  of  some  of  the  public 
transactions  in  which  he  had  been  engaged.  At  this  time  he  had  in  his  pos- 
session a few  notes  of  the  debates  which  took  place  in  Congress  on  tlie  subject 
of  independence,  and  which  he  made  at  the  time.  These  notes  he  inserted 
bodily,  as  they  stood,  in  his  memoir,  and  they  are  so  printed  (Jefferson’s  Works, 
I.  10-14).  They  are  easily  distinguishable  from  the  text  of  the  memoir,  but  they 
do  not  appear  to  throw  any  especial  light  upon  the  fact  now  in  controversy; 
although,  as  Mr.  Jefferson,  in  1823,  when  writing  on  this  subject,  supported 
his  recollection  by  “written  notes,  taken  at  tlie  moment  and  on  the  spot,”  it 
is  proper  to  allow  tliat  those  notes  may  in  some  way  have  aided  his  memoiy, 
although  we  cannot  now  see  in  what  way  they  did  so.  He  made  this  latter 
reference  in  a letter  which  he  wrote  to  Mr.  Madison,  in  reply  to  the  statements 
in  Mr.  Adams’s  letter  to  Timothy  Pickering,  under  date  of  August  6,  1822. 
(Jefferson’s  Works,  IV.  375,  376.) 

At  or  near  the  beginning  of  the  present  century,  Mr.  Adams,  then  about 
sixty-six,  wrote  an  autobiography,  which  was  published  in  1850,  and  in  which 
he  gave  an  account  of  the  authorship  of  the  Declaration.  In  1822,  when  about 


THE  REVOLUTIONARY  GOVERNMENT. 


57 

eighty -six,  lAIr.  Adams  wrote  the  letter  to  Mr.  Pickering  which  called  forth 
Mr.  Jellerson’s  contradiction  in  his  letter  to  Mr.  Madison,  under  date  of 
August  30,  1823  (Adams’s  Works,  II.  510-515).  Mr.  Jetferson,  in  his  memoir 
written  in  1821,  states  simply  that  the  committee  for  drawing  the  Declara- 
tion desired  him  to  do  it;  that  he  accordingly  wrote  it,  and  that,  being  ap- 
l)rovcd  by  the  committee,  he  reported  it  to  the  Congress  on  Friday,  the  28tli 
ofJime,  when  it  was  read  and  ordered  to  lie  on  the  table;  and  that  on  Monday, 
tlie  1st  of  July,  the  Congress,  in  committee  of  the  whole,  proceeded  to  consider 
it.  “The  pusillanimous  idea,”  he  continues,  “that  we  had  friends  in  England 
worth  keeping  terms  with,  still  haunted  the  minds  of  many.  For  this  reason 
those  passages  which  conveyed  censures  on  the  people  of  England  were  struck 
out,  lest  they  should  give  them  offence.  The  clause,  too,  reprobating  the  enslav- 
ing the  inhabitants  of  Africa,  was  struck  out  in  complaisance  to  South  Carolina 
and  Georgia,  who  had  never  attempted  to  restrain  the  importation  of  slaves, 
and  who,  on  the  contrary,  wished  to  continue  it.  Our  Northern  bretliren,  also, 
I believe,  felt  a little  tender  under  those  censures ; for  though  their  people  had 
very  few  slaves  themselves,  yet  they  had  been  pretty  considerable  carriers  of 
them  to  otliers.  The  debates  having  taken  up  the  greater  parts  of  the  2d,  3d, 
and  4th  days  of  July,  were,  on  the  evening  of  the  last,  closed.”  (Jefferson’s 
Works,  I.  14,  15.) 

In  Mr.  Adams’s  autobiography  the  following  account  is  given  : “ The  Com- 
mittee of  Independence  were  Thomas  Jefferson,  John  Adams,  Benjamin  Franklin, 
Roger  Sherman,  Robert  R.  Livingston.  Mr.  Jefferson  had  been  now^  about  a 
year  a member  of  Congress,  but  had  attended  his  duty  in  the  House  a very  small 
part  of  the  time,  and,  wdien  there,  had  never  spoken  in  public.  During  the 
wdmle  time  I sat  with  him  in  Congress,  I never  heard  him  utter  three  sentences 
together.  It  will  naturally  be  inquired  how  it  happened  that  he  was  appointed 
on  a committee  of  such  importance.  There  were  more  reasons  than  one.  Mr. 
Jefferson  had  the  reputation  of  a masterly  pen;  he  had  been  chosen  a delegate 
in  Virginia,  in  consequence  of  a very  handsome  public  paper  which  he  had 
written  for  the  House  of  Burgesses,  which  had  given  him  the  character  of  a 
fine  writer.  Another  reason  w^as,  that  Mr.  Richard  Henry  Lee  was  not  beloved 
by  the  most  of  his  colleagues  from  Virginia,  and  Mr.  Jefferson  wms  set  up  to 
rival  and  supplant  him.  This  could  be  done  only  by  the  pen,  for  Mr.  Jefferson 
could  stand  no  competition  wdth  him  or  any  one  else  in  elocution  and  public 
debate.  . . . The  committee  had  several  meetings,  in  which  were  proposed  the 
articles  of  which  the  Declaration  was  to  consist,  and  minutes  made  of  them. 
The  committee  then  appointed  Mr.  Jefferson  and  me  to  draw  them  up  in  form, 
and  clothe  them  in  a proper  dress.  The  sub-committee  met,  and  considered 
the  minutes,  making  such  observations  on  them  as  then  occurred,  when  Mr. 
Jefferson  desired  me  to  take  them  to  my  lodgings,  and  make  the  draft.  This  I 
declined,  and  gave  several  reasons  for  declining;  1.  That  he  was  a Virginian, 
and  I a Massachusettensian.  2.  That  he  w\as  a Southern  man,  and  I a Northern 
one.  3.  That  I had  been  so  obnoxious  for  my  early  and  constant  zeal  in  promot- 
ing  the  measure,  that  any  draft  of  mine  wmuld  undergo  a more  severe  scrutiny 


58 


CONSTITUTIONAL  HISTORY. 


and  cnticisin  in  Congress  than  one  of  his  composition.  4.  And  lastly,  and  that 
would  be  reason  enough  if  there  were  no  other,  I had  a great  opinion  of  the 
elegance  of  his  j)en,  and  none  at  all  of  my  own.  I therefore  insisted  that  no 
hesitation  should  be  made  on  his  part.  He  accordingly  took  the  minutes,  and 
in  a day  or  two  produced  to  me  his  draft.  Whether  I made  or  suggested  any 
corrections  I remember  not.  The  report  was  made  to  the  committee  of  live,  by 
them  examined,  but  wliether  altered  or  corrected  in  anything  I cannot  recollect. 
But,  in  substance,  at  least,  it  was  reported  to  Congress,  where,  after  a severe 
criticism,  and  striking  out  several  of  the  most  oratorical  paragraphs,  it  was 
adopted  on  the  4th  of  July,  1776,  and  published  to  the  world.”  (Adams’s  Works, 
II.  511-515.) 

The  account  in  Mr.  Adams’s  letter  to  Mr.  Pickering  is  as  follows:  “You 
inquire  why  so  young  a man  as  Mr.  Jefferson  was  placed  at  tlie  head  of  the  com- 
mittee for  preparing  a Declaration  of  Independence?  I answer,  it  was  the 
Frankfort  advice  to  place  Virginia  at  the  head  of  everything.  Mr.  Richard 
Henry  Lee  might  be  gone  to  Virginia,  to  his  sick  family,  for  aught  I know;  but 
that  was  not  the  reason  of  Mr.  Jefferson’s  appointment.  There  were  three  com- 
mittees appointed  at  the  same  time.  One  for  the  Declaration  of  Independence, 
another  for  preparing  Articles  of  Confederation,  and  another  for  preparing  a 
treaty  to  be  proposed  to  France.  Mr.  Lee  was  chosen  for  the  Committee  of 
Confederation,  and  it  was  not  thought  convenient  that  the  same  person  should 
be  upon  both.  Mr.  Jefferson  came  into  Congress  in  June,  1775,  and  brought 
with  him  a reputation  for  literature,  science,  and  a happy  talent  of  composition. 
Writings  of  his  were  handed  al)out,  remarkable  for  their  peculiar  felicity  of 
expression.  Though  a silent  member  in  Congress,  he  was  so  prompt,  frank, 
explicit,  and  decisive  upon  committees  and  in  conversation— not  even  Samuel 
Adams  was  more  so — that  he  soon  seized  upon  my  heart ; and  upon  this  occa- 
sion I gave  him  my  vote,  and  did  all  in  my  power  to  procure  the  votes  of  others. 
I think  he  had  one  more  vote  tlian  any  other,  and  that  placed  him  at  the  head 
of  the  committee.  I had  the  next  liighest  number,  and  tliat  placed  me  second. 
The  committee  met,  discussed  tlie  subject,  and  then  appointed  Mr.  Jefferson 
and  me  to  make  the  draft,  I suppose  because  we  were  the  two  first  on  tlie  list. 
The  sub-committee  met.  Jefferson  proposed  to  me  to  make  tlie  draft.  I said, 
‘ I will  not.’  ‘ You  should  do  it.’  ‘ Oh,  no.’  ‘Why  will  you  not?  You  ought 
to  do  it.’  ‘I  will  not.’  ‘AVhy?’  ‘ Reasons  enough.’  ‘ What  can  be  your  rea- 
sons?’ ‘Reason  first,— You  are  a Virginian,  and  a Virginian  ought  to  appear  at 
the  head  of  this  business.  Reason  second, — I am  obnoxious,  suspected,  and 
unpopular.  You  are  very  much  otherwise.  Reason  third, — You  can  write  ten 
times  better  than  I can.’  ‘Well,’  said  Jefferson,  ‘if  you  are  decided,  I will  do 
as  well  as  I can.’  ‘Very  well.  When  you  have  drawn  it  up,  we  will  have  a 
meeting.’ 

“ A meeting  we  accordingly  had,  and  conned  the  paper  over.  I was  delighted 
with  its  high  tone  and  the  flights  of  oratory  with  which  it  abounded,  especially 
that  concerning  negro  slavery,  which,  though  I knew  his  Southern  brethren 
would  never  suffer  to  pass  in  Congress,  I certainly  never  would  oppose.  There 


THE  llEVOLUTIONAKY  GOVERNMENT. 


59 


were  other  expressions  which  I would  not  have  inserted,  if  I had  drawn  it  up, 
particularly  that  which  called  the  king  tyrant.  I thought  this  too  personal ; 
for  I never  believed  George  to  be  a tyrant  in  disposition  and  in  nature  ; I always 
believed  him  to  be  deceived  by  his  courtiers  on  both  sides  of  the  Atlantic,  and 
in  his  otlicial  capacity  only,  cruel.  I thought  the  expression  too  passionate,  and 
too  much  like  scolding,  for  so  grave  and  solemn  a document;  but  as  Franklin 
and  Sherman  were  to  inspect  it  afterwards,  I thought  it  would  not  become  me 
to  strike  it  out.  I consented  to  report  it,  and  do  not  now  remember  that  I 
made  or  suggested  a single  alteration. 

AVe  re[)orted  it  to  the  committee  of  five.  It  was  read,  and  I do  not  remem- 
ber that  Franklin  or  Sherman  criticised  anything.  We  were  all  in  haste.  Con- 
gress was  impatient,  and  the  instrument  was  reported,  as  I believe,  in  Jefierson’s 
handwriting,  as  he  first  drew  it.  Congress  cut  off  about  a quarter  of  it,  as  I 
expected  they  would ; but  they  obliterated  some  of  the  best  of  it,  and  left  all 
that  was  exceptionable,  if  anything  in  it  was.  I have  long  wondered  that  the 
original  draft  has  not  been  published.  I suppose  the  reason  is,  the  vehement 
philippic  against  negro  slavery. 

“As  you  justly  observe,  there  is  not  an  idea  in  it  but  what  had  been  hack- 
neyed in  Congress  for  two  years  before.  The  substance  of  it  is  contained  in 
the  Declaration  of  Rights  and  the  violation  of  those  rights,  in  the  Journals  of 
Congress,  in  1774.  Indeed,  the  essence  of  it  is  contained  in  a pamphlet,  voted 
and  printed  by  the  town  of  Boston,  before  the  first  Congress  met,  composed  by 
James  Otis,  as  I suppose,  in  one  of  his  lucid  intervals,  and  pruned  and  polished 
by  Samuel  Adams.” 

Mr.  Jefferson,  on  the  contrary,  in  his  letter  to  Mr.  Madison,  says:  “These 
details  are  quite  incorrect.  The  committee  of  five  met ; no  such  thing  as  a sub- 
committee was  proposed,  but  they  unanimously  pressed  on  myself  alone  to 
undertake  the  draft.  I consented;  I drew  it;  but,  before  I reported  it  to  the 
committee,  I communicated  it  separately  to  Doctor  Franklin  and  Mr.  Adams, 
requesting  their  correction,  because  they  were  the  two  members  of  whose  judg- 
ments and  amendments  I wished  most  to  have  the  benefit,  before  presenting  it 
to  the  committee;  and  you  have  seen  the  original  paper  now  in  my  hands,  with 
the  corrections  of  Doctor  Franklin  and  Mr.  Adams  interlined  in  their  own  hand- 
writings. Their  alterations  were  two  or  three  only,  and  merely  verbal.  I then 
wrote  a fair  copy,  reported  it  to  the  committee,  and  from  them,  unaltered,  to 
Congress.  This  personal  communication  and  consultation  with  Mr.  Adams  he 
has  misremembered  into  the  actings  of  a sub-committee.  Pickering’s  observa- 
tions, and  Mr.  Adams’s  in  addition,  ‘that  it  contained  no  new  idea,  that  it  is 
a commonplace  compilation,  its  sentiments  hackneyed  in  Congress  for  two  years 
before,  and  its  essence  contained  in  Otis’s  pamphlet,’  may  all  be  true.  Of  that  I 
am  not  to  be  the  judge.  Richard  Henry  Lee  charged  it  as  copied  from  Locke’s 
Treatise  on  Government.  Otis’s  pamphlet  I never  saw,  and  whether  I had 
gathered  my  ideas  from  reading  or  reflection  I do  not  know.  I know  only  that 
I turned  to  neither  book  nor  pamphlet  while  writing  it.  I did  not  consider  it 
as  any  part  of  my  charge  to  invent  new  ideas  altogether,  and  to  offer  no  senti- 


60 


CONSTITUTIONAL  HISTORY. 


merit  wliicli  had  ever  been  expressed  before.  Had  Mr.  Adams  been  so  restrained, 
Congress  would  have  lost  the  benefit  of  his  bold  and  impressive  advocations  of 
the  rights  of  revolution.  For  no  man’s  confident  and  fervid  addresses,  more 
than  Mr.  Adams’s,  encouraged  and  supported  us  through  the  difficulties  sur- 
rounding us,  which,  like  the  ceaseless  action  of  gravity,  weighed  on  us  by  night 
and  by  day.  Yet,  on  the  same  ground,  we  may  ask  what  of  these  elevated 
thoughts  was  new,  or  can  be  affirmed  never  before  to  have  entered  the  conceji- 
tions  of  man  ? 

“ Whether,  also,  the  sentiment  of  independence,  and  the  reasons  for  declaring 
it,  which  make  so  great  a portion  of  the  instrument,  had  been  hackneyed  in 
Congress  for  two  years  before  the  4th  of  July,  1776,  or  this  dictum  of  Mr.  Adams 
be  another  slip  of  memory,  let  history  say.  This,  however,  I will  say  for  Mr. 
Adams,  that  he  supported  the  Declaration  with  zeal  and  ability,  fighting  fear- 
lessly for  every  word  of  it.  As  to  myself,  I thought  it  a duty  to  be,  on  that 
occasion,  a passive  auditor  of  the  opinions  of  others,  more  impartial  judges  than 
I could  be  of  its  merits  or  demerits.  During  the  debate  I was  sitting  by  Doctor 
Franklin,  and  he  observed  that  I was  writhing  a little  under  the  acrimonious 
criticisms  on  some  of  its  parts ; and  it  was  on  that  occasion  that,  by  way  of 
comfort,  he  told  me  the  story  of  John  Thomson,  the  hatter,  and  his  new  sign.” 
(Jefferson’s  Works,  IV.  376.) 

The  substantial  point  of  difference  in  these  two  accounts  of  the  same  transac- 
tion relates  to  the  action  of  the  committee  in  designating  the  person  or  persons 
wlio  were  to  prepare  tlie  draft  of  a Declaration.  Mr.  Adams  states  that  Mr. 
Jefferson  and  himself  were  appointed  a sub-committee  to  prepare  it;  Mr.  Jefferson 
states  that  he  alone  was  directed  by  the  committee  to  write  the  Declaration. 
This  question  is  not  important,  since  Mr.  Adams’s  version  does  not  in  the  least 
impair  Mr.  Jefferson’s  claim  to  the  authorship  of  the  instrument.  The  latter,  it 
must  be  allowed,  gracefully  parries  the  criticisms  of  Mr.  Adams,  by  a noble  allu- 
sion to  the  eloquence  which  sustained  his  compatriots  in  the  difficulties  and 
embarrassments  that  surrounded  them,  and  wliich  tliey  did  not  think  of  ana- 
lyzing, for  the  purpose  of  tracing  the  exact  originality  of  its  sentiments. 

It  is  proper  to  add  that  Mr.  Jefferson’s  account  is  confirmed  by  the  original 
manuscript  draft  of  the  Declaration,  afac-simile  of  which  was  published  in  1829, 
in  the  fourth  volume  of  his  Works,  exhibiting  the  corrections  and  interlineations 
made  by  Dr.  Franklin  and  Mr.  Adams  in  their  respective  handwritings.  These 
emendations  were  not  important. 

The  reasons  assigned  by  Mr.  Adams  for  the  selection  of  Mr.  Jefferson  as  the 
writer  of  the  Declaration  are  so  numerous  that  it  is  difficult  to  determine  which 
of  them  he  intended  should  be  regarded  as  the  principal  or  decisive  one.  In 
tlie  autobiograph}",  he  states  that  tliere  were  more  reasons  than  one  why  Mr. 
Jefferson  was  appointed  on  a committee  of  such  importance.  He  assigns  two 
reason® : one,  Mr.  Jefferson’s  rejiutation  as  a writer,  and  the  other,  the  desire  of 
his  Virginia  colleagues  to  have  Mr.  Jefferson  supplant  Mr.  Richard  Henry  Lee. 
In  his  letter  to  Mr.  Pickering,  Mr.  Adams  gives  as  the  reason  why  Mr.  Jefferson 
was  placed  at  tlie  head  of  the  committee,  that  it  was  “the  Frankfort  advice  to 


THE  REVOLUTIONARY  GOVERNMENT.  Qi 

place  Virginia  at  the  head  of  everything;”  but  he  also  adds  that  ]\Ir.  Jefferson 
brought  with  Ijim  to  Congress  “a  reputation  for  literature,  science,  and  a happy 
talent  of  composition,”  and  that  this  reputation  liad  then  been  sustained  by 
writings  “remarkable  for  their  peculiar  felicity  of  expression.”  As  in  the  case 
ot  Washington,  therefore,  it  would  seem  that  there  were  reasons  of  eminent 
fitness  and  qualification  for  the  duty  assigned  ; and  certainly  the  Declaration  of 
Independence  itself  fully  justifies  the  selection.  Few  state  papers  have  ever 
been  written  with  more  skill,  or  greater  adaptation  to  the  purposes  in  view. 
Whether  its  sentiments  were  purely  original  with  its  author,  or  were  gathered 
from  the  political  philosophy  which  had  become  familiar  to  the  American  mind, 
through  the  great  discussions  ot  the  time,  it  must  forever  remain  an  imperish- 
able monument  of  his  power  of  expression,  and  his  ability  to  touch  the  passions, 
as  well  as  to  address  the  reason,  of  mankind.  It  would  be  inappropriate  to 
apply  to  its  style  the  canons  of  modern  criticism.  Its  statements  of  political 
truth,  taken  in  the  sense  in  which  they  were  manifestly  intended,  can  never  be 
successfully  assailed.  With  regard  to  the  passage  concerning  slavery,  we  may 
well  conceive  that  both  Northern  and  Southern  men  might  have  felt  the  injustice 
of  the  terrible  denunciation  with  which  he  charged  upon  the  Ung  all  the  horrors, 
enmes,  and  consequences  of  the  African  slave-trade,  and  in  which  he  accused 
him  of  exciting  the  slaves  to  insurrection,  and  “to  purchase  the  libertv  of  which 
he  had  deprived  them  by  murdering  the  people  upon  whom  he  had  obtruded 
them.”  Mr.  Jefferson,  in  drawing  up  the  list  of  our  national  accusations  against 
the  king,  obviously  intended  to  refer  to  him  as  the  representative  of  the  public 
policy  and  acts  of  the  mother  country;  and  it  is  true  that  the  imperial  govern- 
ment was,^  and  must  always  remain,  responsible  for  the  existence  of  slavery  in 
the  colonies.  But  this  was  not  one  of  the  gi-ievances  to  be  redressed  by  the 
Revolution  ; it  did  not  constitute  one  of  the  reasons  for  aiming  at  independence  ; 
and  there  was  no  sufficient  ground  for  the  accusation  that  the  government  of 
Great  Britain  had  knowingly  sought  to  excite  general  insurrections  among  the 
slaves.  ^ The  rejecHon  of  this  passage  from  the  Declaration  shows  that  the"con- 
gress  did  not  consider  this  charge  to  be  as  tenable  as  all  their  other  complaints 
certainly  were. 


CHAPTER  lY. 

July,  1776— November,  1777. 

Consequences  of  the  Declaration  of  Independence. — Reorgani- 
zation OF  THE  Continental  Army. — Flight  of  the  Congress 
FROM  Philadelphia. — Plan  of  the  Confederation  Proposed. 

When  the  Declaration  of  Independence  at  length  came,  it  did 
not  in  any  way  change  the  form  of  the  revolutionary  government. 
It  created  no  institution,  and  erected  no  civil  machinery.  Its 
political  effect  has  already  been  described.  Its  moral  effect,  both 
upon  the  members  of  the  Congress  and  upon  the  country,  was 
very  great,  inasmuch  as  it  put  an  end  alike  to  the  hope  and  the 
possibility  of  a settlement  of  the  controversy  upon  the  principles 
of  the  English  Constitution,  for  it  made  the  colonies  free,  sov- 
ereign, and  independent  states.  Men  who  had  voted  for  such  a 
measure,  and  who  had  put  their  signatures  to  an  instrument  v/hich 
the  British  Parliament  or  the  Court  of  King’s  Bench  would  have 
had  no  difficulty  in  punishing  as  treasonable,  could  no  longer  con- 
tinue to  feed  themselves  on  the  dainty  food  of  reconciliation.” ' 
Thenceforward  there  was  no  retreat.  The  colonies  might  be  con- 
quered, overrun,  and  enslaved  ; but  this,  or  the  full  and  final  estab- 
lishment of  their  own  sovereignty,  were  the  sole  alternatives. 
The  consequence  was  that  the  Declaration  was  followed  by  a 
greater  alacrity  on  the  part  of  the  whole  body  of  the  Congress 
to  adopt  vigorous  and  decisive  measures,  than  had  before  pre- 
vailed among  them. 

But  there  was  one  feeling  which  the  Declaration  did  not  dis- 
pel, and  another  to  which  it  immediately  gave  rise,  both  of  which 
were  unfavorable  to  concentrated,  vigorous,  and  effective  action 
on  the  part  of  the  revolutionary  government.  The  Declaration 
of  Independence  did  not  dissipate  the  unreasonable  and  ill-timed 


’ Wasliiugton’s  Writings,  III.  403. 


o 

adi. 
tern 
of  the 
tirely  Id 
standing  ar 
it  was  impossi 


Writin 


THE  REVOLUTIONARY  GOVERNMENT. 


G5 


pense  of  clothing  was  to  be  deducted  from  the  pay.*  Although 
the  othcers  were  to  be  commissioned  by  the  Continental  Congress, 
each  state  was  to  appoint  the  oliicers  of  its  own  battalions,  from 
the  colonel  to  those  of  tlie  lowest  grade,  inclusive.  A circular 
letter  was  addressed  by  Congress  to  each  state,  urging  its  imme- 
diate attention  to  the  raising  of  these  troops ; and  a committee  of 
three  members  of  the  Congress  w^as  sent  to  the  headquarters  of 
AVashington,  to  confer  with  him  on  the  subject."' 

Two  serious  defects  in  this  plan  struck  the  commander-in-chief 
as  soon  as  it  was  laid  before  him ; but  the  resolves  had  been  passed, 
and  passed  with  difficulty,  before  he  had  an  opportunity  specifi- 
cally to  point  out  the  mistakes.  In  the  first  place,  by  giving  the 
appointment  of  the  officers  to  the  states,  any  central  system  of 
promoting  or  placing  the  officers  then  serving  on  the  Continental 
establishment  according  to  their  characters  and  deserts  was  ren- 
dered impossible.  The  resolutions  of  Congress  did  not  even  rec- 
ommend these  officers  to  the  consideration  of  their  respective 
states.  They  were  left  to  solicit  their  appointments  at  a distance, 
or  to  go  home  and  make  personal  application.  Those  who  chose 
to  do  the  latter  were  more  likely  to  get  good  places  than  those 
who  remained  at  their  posts ; but  they  were  also  less  likely  to  be 
deserving  of  important  commissions  than  those  who  stayed  with 
the  army.  To  expect  that  a proper  attention  would  be  paid  to 
the  claims  of  men  of  real  merit  under  such  a system — whether 
they  had  or  had  not  been  in  service  before — or  that  the  army 
when  brought  together  would  be  found  to  be  officered  on  a uni- 
form principle,  exhibiting  an  adaptation  of  character  to  station, 
was,  in  AYashington’s  view,  to  expect  that  local  authorities  would 
not  be  influenced  by  local  attachments,  and  that  merit  would 
make  its  way,  in  silence  and  absence,  against  personal  importu- 
nity and  bold  presumption. 

But  AYashington  saw  no  remedy  for  these  evils,  except  by 
opening  a direct  communication  with  the  states,  through  which 
he  might  exert  some  influence  over  their  appointments.  He  im- 


’ Journals,  II.  357.  Subsequently,  by  a resolve  passed  November  12  (1776), 
the  option  was  given  to  enlist  lor  the  war  or  for  three  years,  taking  away  the 
land  bounty  from  those  who  enlisted  for  the  latter  period  only.  Ibid.  454. 

2 Ibid. 

L-5 


66 


CONSTITUTIONAL  HISTORY. 


mediately  suggested  to  the  Congress  that  each  state  should  send 
a commission  to  the  army,  with  authority  to  appoint  all  the  offi- 
cers of  the  new  regiments.  Congress  passed  a resolve  recom- 
mending this  step  to  the  states,  and  advising  that  the  commander- 
in-chief  should  be  consulted  in  making  the  appointments ; that 
those  officers  should  be  promoted  who  had  distinguished  them- 
selves for  bravery  and  attention  to  their  duties  ; that  no  officer 
should  be  appointed  who  had  left  his  station  without  leave ; and 
that  all  the  officers  to  be  appointed  should  be  men  of  honor  and 
known  abilities,  without  particular  regard  to  their  having  been 
in  service  before.'  This  was  but  a partial  remedy  for  the  defects 
of  the  system.  Several  of  the  states  sent  such  a commission  to 
act  with  the  commander-in-chief ; but  many  of  them  were  tardy 
in  making  their  appointments,  and  finally  the  Congress  author- 
ized Washington  to  fill  the  vacancies. 

Another  and  a dangerous  defect  in  this  plan  was,  that  the 
Continental  pay  and  bounty  on  enlistment  were  fixed  so  low  that 
some  of  the  states,  in  order  to  fill  up  their  quotas,  deemed  it  ex- 
pedient to  offer  a further  pay  and  bounty  to  their  own  men.  This 
was  done  immediately  by  the  states  of  Connecticut  and  Massa- 
chusetts. The  consequence  was  likely  to  be,  that,  if  the  quotas 
of  some  states  were  raised  before  the  fact  became  known  that 
other  states  had  increased  the  pay  and  the  bounty,  some  regi- 
ments would,  when  the  army  came  together,  be  on  higher  pay 
than  others,  and  jealousy,  impatience,  and  mutiny  would  be  very 
likely  to  follow.  Knowing  that  a different  pay  could  not  exist 
in  the  same  army  without  these  consequences,  Washington  remon- 
strated with  the  Governor  of  Connecticut,  arrested  the  proceed- 
ings of  the  commissioners  of  that  state  and  of  Massachusetts,  and 
prevented  them  from  publishing  their  terms,  until  the  sense  of 
the  Congress  could  be  obtained.''  That  body,  on  receiving  from 
him  another  strong  representation  on  the  subject,  passed  a resolve 
augmenting  the  pay. 

Still  the  system,  notwithstanding  these  efforts  to  amend  it, 
worked  ill.  The  appointment  of  the  officers  by  the  states  was 
incapable  of  being  well  managed  ; the  pay  and  bounty,  even  after 


1 Journals,  II.  403.  October  8,  1776. 


“ Writings  of  Washington,  IV.  173. 


THE  REVOLUTIONARY  GOVERNMENT. 


(>7 


they  were  increased,  were  insufficient ; and  tlie  wliole  scheme  of 
raising  a permanent  army  was  entered  upon  at  too  late  a period 
to  be  elfectually  accomjdished.  Down  to  the  middle  of  Novem- 
ber so  little  had  been  done  that  the  entire  force  on  one  side  of 
tlie  Hudson,  opposed  to  Howe’s  whole  army,  did  not  exceed  two 
thousand  men  of  the  established  regiments ; while,  on  the  other 
side,  there  was  a force  not  much  larger  to  secure  the  passes  into 
the  Highlands.*  “ I am  wearied  almost  to  death,”  said  the  com- 
mander-in-chief, in  a private  letter,  ‘‘  with  the  retrograde  motion 
of  things,  and  I solemnly  protest  that  a pecuniary  reward  of 
twenty  thousand  pounds  a year  would  not  induce  me  to  undergo 
what  I do ; and  after  all,  perhaps,  to  lose  my  character,  as  it  is 
impossible,  under  such  a variety  of  distressing  circumstances,  to 
conduct  matters  agreeably  to  public  expectation,  or  even  to  the 
expectations  of  those  who  employ  me,  as  they  will  not  make 
proper  allowances  for  the  difficulties  their  owm  errors  have 
occasioned.”  ^ 

There  are  few  pages  in  our  history  so  painful  as  those  on 
which  are  recorded  the  complaints  extorted  from  Washington,  at 
this  period,  by  the  trials  of  his  situation.  That  he,  an  accom- 
plished soldier,  who  had  retired  with  honor  from  the  late  war 
with  France  to  his  serene  Mount  Yernon;  who  had  left  it  again 
to  stake  life,  and  all  that  makes  life  valuable,  on  the  new  issue  of 
his  country’s  independence ; who  asked  no  recompense  and  sought 
no  object  but  her  welfare,  should  have  been  compelled  to  pass 
into  the  dark  valley  of  the  retreat  through  New  Jersey,  with  all 
its  perplexities,  dangers,  and  discouragements,  its  exertions  and 
its  reverses,  without  a powerful  and  energetic  government  to  lean 
upon,  and  with  scarcely  more  than  divine  assistance  to  which  to 
turn,  presents,  indeed,  to  our  separate  contemplation,  a dishearten- 
ing and  discreditable  fact.  But  no  trials  are  appointed  to  nations, 
or  to  men,  without  their  fruits.  The  perplexities  and  difficulties 
which  surrounded  Washington  in  the  early  part  of  the  Ee volution 
contributed,  undoubtedly,  to  give  him  that  profound  civil  wisdom, 
that  knowledge  of  our  civil  wants,  and  that  influence  over  the 
country,  which  were  afterwards  so  beneficently  felt  in  the  estab- 
lishment of  the  Constitution.  The  very  weakness  of  the  govern- 


* Writings  of  Washington,  IV.  183,  184. 


2 Ibid.  184. 


08 


CONSTITUTIONAL  HISTORY. 


ment  which  he  served  became  in  this  manner  his  and  our  strength. 
Without  the  trials  to  which  it  subjected  him,  it  ma}’'  well  be 
doubted  whether  we  should  now  possess  that  security  against  dis- 
tracted counsels  and  clashing  interests  which  exist  for  us  in  the 
character  and  services  of  that  extraordinary  man. 

It  is  not  necessary  to  sketch  the  scene  or  to  follow  the  route 
of  Washington’s  retreat  through  'New  Jersey,  except  as  they  illus- 
trate the  subject  of  this  work  — the  constitutional  history  of  the 
country.  Its  remarkable  military  story  is  well  known.  On  the 
23d  of  November,  four  days  after  the  date  of  the  letter  to  his 
brother  above  quoted,  he  was  at  Newark,  with  a body  of  troops 
whose  departure  was  near  at  hand,  and  for  supplying  whose  places 
no  provision  had  been  made.  The  enemy  were  pressing  on  his 
rear,  and  in  order  to  impress  upon  Congress  the  danger  of  his  sit- 
uation he  sent  General  Mifflin  to  lay  an  exact  account  of  it  before 
them.'  On  the  28th  he  marched  out  of  Newark  in  the  morning, 
and  Lord  Cornwallis  entered  it  on  the  afternoon  of  the  same  day. 
On  the  30th  he  was  at  Brunswick,  endeavoring,  but  with  little 
success,  to  raise  the  militia,  the  terms  of  service  of  the  Jersev 
and  Maryland  brigades  expiring  on  that  day.  On  the  1st  of  De- 
cember his  army  numbered  only  four  thousand  men,  and  the  ene- 
my were  pushing  forward  with  the  greatest  energy."  On  the  5th 
he  resolved  to  march  back  to  Princeton ; but  neither  militia  nor 
regulars  had  come  in,  and  it  was  too  late  to  prevent  an  evil  which 
he  had  both  foreseen  and  foretold."  On  the  8th  he  crossed  the 
Delaware."  On  the  12th  he  saw  his  little  handful  of  men  still 
further  decrease  ; and  now,  without  succors  from  tlie  government 
or  spirited  exertions  on  the  part  of  the  people,  the  loss  of  Phila- 
delphia—“an  event,”  said  he,  “which  will  wound  the  heart  of 
every  virtuous  American  ” — rose  as  a spectre  in  his  path."  On 
the  16th,  as  he  moved  on,  gathering  all  the  energies  of  his  charac- 
ter to  parry  this  deep  disgrace,  concentrating  every  force  that 
remained  to  him  towards  the  defence  of  the  city,  and  animating 
and  directing  public  bodies  in  a tone  of  authority  and  command, 
he  once  more  urged  the  Congress  to  discard  all  reliance  upon  the 
militia,  to  augment  the  number  of  the  regular  troops,  and  to  strain 


* Writings,  IV.  190. 

* Ibid.  206., 


" Ibid.  197. 
* Ibid.  211. 


» Ibid.  202. 


THE  K E V O L U T I O N A li  Y G O V E li  N E N T. 


(51) 


every  nerve  to  recruit  them/  Finally  — being  still  in  doubt 
whether  Howe  did  not  intend  an  attack  on  Philadelphia  before 
o’oint'’  into  winter  quarters — with  less  than  three  thousand  men 
tit  for  duty,  to  o})pose  a well-a])pointed  army  of  ten  or  twelve 
thousand,  and  surrounded  by  a population  rapidly  submitting  to 
the  enemy— he  felt  that  the  time  had  come  when  to  his  single 
hands  must  be  given  all  the  military  authority  and  power  which 
the  Continental  Union  of  America  held  in  trust  for  the  liberties 
of  the  country.  On  the  20th  of  December,  therefore,  he  wrote  to 
the  President  of  Congress  a memorable  letter,  asking  for  extraor- 
dinary powers,  but  displaying  at  the  same  time  all  the  modesty 
and  high  principle  of  his  character.'’ 

To  this  appeal  Congress  at  once  responded,  in  a manner  suited 
to  the  exigency.  On  the  2Tth  of  December,  1Y76,  they  passed  a 
resolution,  vesting  in  Washington  ample  and  complete  power  to 
raise  and  collect  together,  in  the  most  speedy  and  effectual  man- 
ner from  all  or  any  of  the  United  States,  sixteen  battalions  of 
infantry,  in  addition  to  those  already  voted ; to  appoint  the  offi- 
cers of  these  battalions ; to  raise,  officer,  and  equip  three  regiments 
of  artillery  and  a corps  of  engineers,  and  to  establish  their  pay ; 
to  apply  to  any  of  the  states  for  such  aid  of  their  militia  as  he 
might  judge  necessary ; to  form  such  magazines  of  provisions,  and 
in  such  places,  as  he  should  think  proper ; to  displace  and  appoint 
all  officers  under  the  rank  of  brigadier-general ; to  fill  up  all  va- 
cancies in  every  other  department  of  the  American  army ; to  take, 
wherever  he  might  be,  whatever  he  might  want  for  the  use  of  the 
army,  if  the  inhabitants  would  not  sell  it,  allowing  a reasonable 
price  for  the  same ; to  arrest  and  confine  persons  who  should  re- 
fuse to  receive  the  Continental  currency,  or  were  otherwise  disaf- 
fected to  the  American  cause;  and  to  return  to  the  states  of 
which  such  persons  were  citizens  their  names  and  the  nature  of 
their  offences,  together  with  the  witnesses  to  prove  them.  These 
powers  were  vested  in  the  commander-in-chief  for  the  space  of 
six  months  from  the  date  of  the  resolve,  unless  sooner  revoked  by 
the  Congress.^ 

^ Writings,  IV.  225.  ® Ibid.  232, 

* Journals,  II.  475.  A committee,  at  the  head  of  which  was  Robert  Morris, 
was  appointed  to  transmit  this  resolve  to  Washington,  and  in  their  letter  they 
said  ; “ We  find  by  these  resolves  that  your  excellency’s  hands  will  be  strength- 


70 


CONSTITUTIONAL  HISTORY. 


The  powers  thus  conferred  upon  Washington  were  in  reality 
those  of  a military  dictatorship,  and  in  conferring  them  the  Con- 
gress acted  upon  the  maxim  that  the  public  safety  is  the  supreme 
law.  They  acted,  too,  as  if  they  were  the  proper  judges  of  the 
exigency,  and  as  if  the  powers  they  granted  were  then  rightfully  in 
their  hands.  But  it  is  a singular  proof  of  the  unsettled  and  anom- 
alous condition  of  the  political  system  of  the  country,  and  of  the 
want  of  practical  authority  in  the  Continental  government,  that, 
in  three  days  after  the  adoption  of  the  resolves  conferring  these 
powers,  the  Congress  felt  it  necessary  to  address  a letter  to  the 
governors  of  the  states  apologizing  for  this  step.  Nor  was  their 
letter  a mere  apology.  It  implied  a doubt  whether  the  Conti- 
nental government  possessed  a proper  authority  to  take  the  steps 
which  the  crisis  demanded,  and  whether  the  execution  of  all 
measures  did  not  really  belong  to  the  states,  the  Congress  having 
only  a recommendatory  power.  ‘‘Ever  attentive,”  their  letter 
declared,  “ to  the  security  of  civil  liberty.  Congress  would  not 
have  consented  to  the  vesting  of  such  powers  in  the  military  de- 
partment as  those  which  the  enclosed  resolves  convey  to  the  Con- 
tinental commander-in-chief,  if  the  situation  of  public  affairs  did 
not  require,  at  this  crisis,  a decision  and  vigor  which  distance  and 
numbers  deny  to  assemblies  far  removed  from  each  other  and 
from  the  seat  of  war.”  The  letter  closed  by  requesting  the  states 
to  use  their  utmost  exertions  to  further  such  levies  as  the  general 
might  direct,  in  consequence  of  the  new  powers  given  him,  and 
to  make  up  and  complete  their  quotas  as  formerly  settled.* 

ened  by  very  ample  powers,  and  a new  reformation  of  tlie  army  seems  to  have 
its  origin  therein.  Happy  it  is  for  this  country  tliat  the  general  of  their  forces 
can  salely  be  intrusted  with  the  most  unlimited  power,  and  neitlier  personal  se- 
curity, liberty,  nor  property  be  in  the  least  degree  endangered  thereby.”  In  his 
reply,  tlie  general  said  to  the  committee:  “Yours  of  tlie  31st  of  last  month  en- 
closed to  me  sundry  resolves  of  Congress,  by  which  I find  they  have  done  me 
the  honor  to  intrust  me  with  powers,  in  my  military  capacity,  of  the  highest  nat- 
ure, and  almost  unlimited  in  extent.  Instead  of  thinking  myself  freed  from  all 
civil  obligations  by  this  mark  oftlieir  confidence,  I shall  constantly  bear  in  mind 
that,  as  the  sword  was  the  last  resort  for  the  preservation  of  our  liberties,  so  it 
ought  to  be  the  first  thing  laid  aside  when  those  liberties  are  firmly  established. 

I shall  instantly  set  about  the  most  necessary  reforms  in  the  army,  but  it  will 
not  be  in  my  power  to  make  so  great  a progress  as  if  I had  a little  leisure  time 
upon  my  hands.”  Writings  of  Washington,  IV.  257,  552.  ^ Ibid.  551, 


THE  UEVOLUTION  A K V GOVEKNMENT. 


n 


Strictly  examined,  tlierefore,  the  position  taken  by  tlie  Con- 
<>ress  was,  that  a crisis  existed  demanding  the  utmost  decision  and 
vigor ; that  the  measures  necessary  to  meet  it,  such  as  the  raising 
of  troops  and  the  compulsory  levying  of  supplies,  belonged  to  the 
states ; but  that,  the  state  governments  being  removed  from  each 
other  and  from  the  seat  of  war,  the  Congress  confers  upon  the 
Continental  general  power  to  do  things  which  in  reality  it  belongs 
to  the  states  to  do.  In  this  there  was  a great  inaccuracy,  accord- 
ing to  all  our  present  ideas  of  constitutional  power.  But  still  the 
action  of  the  Congress  expresses  and  exhibits  their  real  situation. 
It  contains  a contradiction  between  the  true  theory  of  their  revo- 
lutionary powers  and  the  powers  which  they  could  in  fact  practi- 
cally exercise.  Upon  principle,  it  was  just  as  competent  to  the 
Congress  to  take  the  steps  required  by  the  exigency  as  it  was  to 
adjudge  them  to  the  states ; and  it  was  just  as  competent  to  the 
Congress  to  do  anything  directly  as  to  confer  a power  to  do  it  on 
their  general.  But  the  jealousies  of  the  states,  the  habits  of  the 
country,  and  the  practical  working  of  the  existing  institutions, 
had  never  permitted  the  fall  exercise  of  the  revolutionary  powers 
Avhich  properly  resided  in  the  hands  of  the  Congress.  The  true 
theory  of  their  situation  was  limited  by  practical  impossibilities, 
and  an  escape  from  contradictions  became  impossible.  It  was 
perceived  that  the  states  would  neither  pass  laws  or  resolves  for 
the  summary  raising  of  forces  and  levying  of  supplies,  nor  allow 
this  to  be  done  by  committees  or  commissioners  of  Congress ; but  it 
was  believed  that  they  would  acquiesce  in  its  being  done  by  Wash- 
ington, out  of  respect  for  his  character,  for  his  abilities  and  his  mo- 
tives, and  from  conviction  that  he  alone  could  save  the  country. 

The  expectations  of  the  Congress  were  not  disappointed.  It 
was  felt  throughout  the  country  that  such  powers  could  be  lodged 
in  the  hands  of  Washington  without  danger.  The  states  in  gen- 
eral acquiesced  in  the  necessity  and  propriety  of  this  measure, 
and  there  was  little  disposition  to  encroach  upon  or  to  complain 
of  the  authority  conferred.  To  this  acquiescence,  however,  there 
were  exceptions.^ 

The  period  which  now  followed  was  a part  of  the  interval 


1 Writings  of  Washington,  IV.  551. 


72 


CONSTITUTIONAL  HISTORY. 

(luring  which  the  Articles  of  Confederation  were  pending  in  Con- 
gress. AV^e  have  seen  that  the  plan  of  a confederation  was  reported 
to  that  body  in  July,  1Y76,  and  finally  adopted  for  recommenda- 
tion to  the  states  in  November,  1777.  But  soon  after  the  extraor- 
dinary powers  had  been  conferred  upon  Washington  the  attend- 
ance of  the  members  began  to  diminish,  and  several  of  the  most 
eminent  and  able  men  who  had  hitherto  served  retired  from  Con- 
gress. In  January,  1777,  there  were  no  delegations  present  from 
the  states  of  Delaware  and  New  York^  and  in  February  the  ab- 
sence of  many  distinguished  men,  whose  counsels  had  been  of  vast 
importance,  made  a striking  deficiency.  The  formation  of  the 
stare  governments,  and  the  local  affairs  of  the  states,  absorbed  for 
a time,  with  a few  important  exceptions,  the  best  civil  talent  in 
the  country. 

While  the  personal  efficiency  and  wisdom  of  the  Congress  thus 
sensibly  declined,  no  change  took  place  in  the  nature  of  their  pow- 
ers, or  in  their  relations  to  the  states,  that  would  impart  greater 
vigor  to  their  proceedings.  The  delegations  of  many  of  the  states 
were  renewed  in  the  winter  of  1776-7 ; but  there  was  a great  di- 
versity, and  in  some  cases  a great  vagueness,  in  their  instructions.^ 

* Journals,  III.  35. 

^ have  now  to  lament,'’  said  Robert  Morris,  in  a private  letter  to  'Wash- 
ington, under  date  of  February  27th,  1777,  “the  absence  from  the  public  coun- 
cils of  America  of  Johnson,  Jay,  R.  R.  Livingston,  Duane,  Deane,  W.  Living- 
ston, Franklin,  Dickinson,  Harrison,  Nelson,  Hooper,  Rutledge,  and  others  not 
less  conspicuous,  without  any  proper  appointments  to  fill  tlieir  places,  and  this 
at  the  very  time  they  are  most  wanted,  or  would  be  so,  if  they  had  not  very 
wisely  supplied  the  deficiency  by  delegating  to  yOur  excellency  certain  powers 
that  they  durst  not  have  intrusted  to  any  other  man.  But  what  is  to  liecome  of 
America  and  its  cause  if  a constant  fluctuation  is  to  take  place  among  its  coun- 
sellors, and  at  every  change  we  find  reason  to  view  it  with  regret?”  Writiim-.s 
of  Washington,  IV.  340,  note. 

2 Massachusetts,  in  December,  1776,  renewed  the  credentials  of  John  Hancock, 
Samuel  Adams,  John  Adams,  Robert  Treat  Paine,  Elbridge  Gerry,  Francis  Dana,’ 
and  James  Lovell,  giving  power  to  any  three  or  more  of  them,  wirh  the  delegates 
from  the  other  American  states,  to  concert,  direct,  and  order  such  further  meas- 
ures as  shall  to  them  appear  best  calculated  for  the  establishment  of  right  and 
libel ty  to  the  American  states,  upon  a basis  permanent  and  secure  against  the 
power  and  art  of  the  British  administration;  for  prosecuting  the  present  war, 
concluding  peace,  contracting  alliances,  establishing  commerce,  and  guarding 
against  any  future  encroachments  and  machinations  of  their  enemies  : with 


THE  REVOLUTIONARY  GOVERNMENT. 

In  such  a state  of  things — with  no  uniform  rule  prescribing 
])owers  of  the  Congress,  and  with  some  uncertainty  in  that 
itself  with  regard  to  its  authority  to  confer  upon  the  commander- 
in-chief  the  powers  with  which  he  was  now  invested — however 
general  might  be  the  readiness  of  the  country  to  acquiesce  in 
their  necessity,  it  is  not  surprising  that  state  jealousy  was  some- 
times aroused,  or  that  it  should  have  been  unreasonable  in  some 
of  its  manifestations. 

A striking  instance  of  this  jealousy  occurred  upon  the  occasion 
of  a proclamation  issued  by  Washington  at  Morristown,  on  the 
25th  of  January,  1777.  Sir  William  Howe  had  published  a procla- 
mation in  Hew  Jersey,  offering  protection  to  such  of  the  inhabit- 
ants as  would  take  an  oath  of  allegiance  to  the  king.  Many  of 
tlie  substantial  farmers  of  the  country  had  availed  themselves  of 


power  to  adjourn,  etc.  (Journals,  IV.  14).  New  Hampshire  in  the  same  month 
sent  William  Whipple,  Josiah  Bartlett,  and  Mathew  Thornton,  making  any  one 
of  them  a full  delegation,  without  any  other  instructions  than  “to  represent”  the 
state  in  the  Continental  Congress  for  one  year,  and  allowing  only  turn  of  them 
to  attend  at  a time  (Ibid.  41).  Virginia  in  the  same  month  appointed  Mann 
Page,  in  the  room  of  George  Wythe,  with  the  same  general  instructions  “ to  rep- 
resent” the  state  (Ibid.  42).  North  Carolina  in  the  same  month  appointed 
William  Hooper,  Joseph  Hewes,  and  Tliomas  Burke,  and  invested  them  “with 
such  powers  as  may  make  any  act  done  by  them,  or  any  of  them,  or  consent  given 
in  the  said  Congress  in  behalf  of  this  state,  obligatory  upon  every  inhabitant 
thereof”  (Ibid.  37).  South  Carolina  chose  Arthur  Middleton,  Thomas  Hay- 
ward, Jr.,  and  Henry  Laurens,  with  power  “to  concert,  agree  to,  and  execute 
every  measure  which  one  or  all  of  them  should  judge  necessary  for  the  defence, 
security,  or  interest  of  this  state  in  particular,  and  of  America  in  general”  (Ibid. 
53).  Connecticut  sent  Roger  Sherman,  Samuel  Huntington,  Eliphalet  Dyer, 
Oliver  Wolcott,  Richard  Law,  and  William  Williams,  “to  consult,  advise,  and 
resolve  upon  measures  necessary  to  be  taken  and  pursued  for  the  defence, 
security,  and  preservation  of  the  rights  and  liberties  of  the  said  United  States, 
and  for  their  common  safety;”  but  requiring  them  “of  such  their  proeeedings 
and  resolves  to  transmit  authentic  copies  from  time  to  time  to  the  General  As- 
sembly of  this  state”  (Ibid.  5).  Of  the  other  states,  Pennsylvania,  Rhode  Island, 
New  York,  New  Jersey,  Maryland,  and  Georgia,  whieh  renewed  their  delegations 
somewhat  later  in  the  year,  instructed  them  simply  “to  represent”  the  state  in 
the  Continental  Congress ; and  Delaware  empowered  its  delegates,  on  behalf  of 
the  state,  “ to  concert,  agree  to,  and  execute  any  measure  which  they,  together 
with  a majority  of  the  Continental  Congress,  should  judge  necessary  for  the 
defence,  security,  interest,  and  welfare  of  that  state  in  particular,  and  America 
in  general  ” (Ibid.  64,  315, 171,  169,  395,  54,  403,  86). 


CONSTITUTIONAL  HISTORY. 


ffer,  and  had  received  protection  from  the  British  general, 
le  English  and  Hessian  troops,  however,  made  no  distinction  be- 
tween friends  and  foes,  but  frequently  committed  great  outrages 
both  upon  person  and  property.  The  resentment  of  the  popula- 
tion would  have  restored  them  to  the  patriot  side  ; but  many  who 
had  taken  the  oath  of  allegiance  felt,  or  affected,  in  consequence, 
scruples  of  conscience. 

Washington  therefore  issued  a counter-proclamation,  command- 
ing all  persons  who  had  received  the  enemy’s  protection  to  repair 
to  headquarters,  or  to  some  general  officer  of  the  army,  and  to 
surrender  their  protections  and  take  an  oath  of  allegiance  to  the 
United  States ; allowing  thirty  days  for  those  who  preferred  to 
remain  under  the  protection  of  Great  Britain  to  withdraw  within 
the  enemy’s  lines.  This  was  considered  in  some  quarters  as  an 
undue  exercise  of  power.  The  idea  of  an  oath  of  allegiance  to 
the  United  States,  before  the  Confederation  was  formed,  was  re- 
garded by  many  as  an  absurdity.  Allegiance,  it  was  said,  was 
due  exclusively  to  the  state  of  which  a man  was  an  inhabitant ; 
the  states  alone  were  sovereign ; and  it  was  for  each  state,  not  for 
the  United  States,  which  possessed  no  sovereignty,  to  exact  this 
obligation.  The  Legislature  of  Hew  Jersey  were  disposed  to  treat 
Washington’s  proclamation  as  an  encroachment  on  their  preroga- 
tives ; and  one  of  the  delegates  of  that  state  in  Congress  denounced 
it  as  improper.' 

This  feeling  was  shared  by  other  members ; but  it  is  not  to  be 
doubted  that  the  proceeding  was  a legitimate  exercise  of  the  au- 
thority vested  in  the  commander-in-chief.  He  had  been  expressly 
empowered  to  arrest  and  coniine  persons  disaffected  to  the  Amer- 
ican cause ; and  the  requiring  them  to  attend  at  his  headquarters 
was  clearly  within  the  scope  of  this  authority.  Moreover,  although 
no  confederation  or  political  union  of  the  states  had  been  formed 
under  a written  compact,  yet  the  United  States  were  waging  war 
as  a government  regularly  constituted  by  its  representatives  in  a 
congress,  for  the  very  purpose  of  carrying  on  such  war.  They  had 
an  army  in  the  field,  whose  officers  held  Continental  commissions. 


* This  was  Mr.  Abraham  Clark,  one  of  the  signers  of  the  Declaration  of  Inde- 
pendence. Mr.  Sparks  has  preserved  a curious  letter  written  by  this  gentleman 
on  the  subject.  Writings  of  Washington,  IV.  208. 


THE  KE  VOLUTION  ARY  GOVERNMENT. 


75 


and  were  paid  by  a Continental  currency.  They  were  exercising 
certain  of  the  attributes  of  sovereignty  as  a belligerent  })ower ; 
and  in  that  capacity  they  had  a complete  right  to  exact  such  an 
obligation  not  to  aid  the  enemy  as  would  separate  their  friends 
from  their  foes.  It  Avas  a military  measure  ; and  the  tenor  of  the 
[)roclamation  shows  that  A\^ashington  exacted  the  oath  in  that 
relation.  To  ])ause  at  such  a moment,  and  to  consider  nicely  how 
much  sovereignty  resided  in  each  of  the  states,  and  how  much  or 
how  little  belonged  to  the  United  States,  Avas  certainly  a great  re- 
finement. But  it  marks  the  temper  of  the  times,  and  the  extreme 
jealousy  Avith  Avhich  all  Continental  poAA^er  and  authority  Avere 
Avatched  at  that  period.* 

' The  Avhole  of  this  alarm  evidently  arose  from  the  use  of  the  words  ‘‘  oath  of 
allegiance”  in  Washington’s  proclamation.  Probably  this  phrase  was  used  by 
him  as  a convenient  description  of  the  obligation  which  he  intended  to  exact. 
He  did  not  use  it  as  a jurist,  but  as  a general  and  a statesman.  In  a letter  writ- 
ten by  him  on  the  5th  of  February  (1777)  to  the  President  of  Congress,  desiring 
tlmt  body  to  urge  the  states  to  adopt  an  oath  of  fidelity,  he  said  : ‘‘From  the 
first  institution  of  civil  government,  it  has  been  the  national  policy  of  every 
precedent  state  to  endeavor  to  engage  its  members  to  tlie  discharge  of  their 
public  duty  by  the  obligation  of  some  oath;”  and  he  tlien  observes,  with  his 
characteristic  wisdom,  that  “ an  oath  is  the  only  substitute  that  can  be  adopted 
to  supply  the  defect  of  ‘principle y He  advised  that  every  state  should  fix  upon 
some  oath  or  affirmation  of  allegiance,  to  be  tendered  to  all  the  inhabitants  with- 
out exception,  and  to  outlaw  those  that  refused  it  (Writings,  IV.  311,  312). 
Afteiw‘aids,  when  the  Legislative  Council  of  New  Jersey — wdiere  some  of  the 
people  had  lefused  to  take  the  oatli  required  by  his  proclamation — applied  to 
him  to  explain  the  nature  of  the  oath,  and  to  be  furnished  with  a copy  of  it, 
tliat  they  might  know  whether  it  was  the  oath  prescribed  by  the  General  As- 
sembly of  that  state,  he  informed  them  that  he  had  prescribed  no  form,  and  had 
reverted  to  none  prescribed  by  them  ; that  his  instructions  to  the  brigadiers 
who  attended  to  that  duty  were,  to  insist  on  nothing  more  than  an  obligation 
in  no  manner  to  injure  the  states;  and  that,  he  had  left  the  form  to  his  subordi- 
nates; but  that  if  he  had  known  of  any  form  adapted  to  the  circumstances  of 
the  inhabitants,  he  would  certainly  have  ordered  it  (Ibid.  319,  note).  This 
explanation  makes  it  quite  certain  that  what  Washington  called  in  his  procla- 
mation an  oath  of  allegiance  was  merely  a military  exaction  of  an  obligation  in 
favor  of  a belligerent  power  against  the  enemy  ; and  his  advice  on  the  subject  of 
a general  civil  oath  of  allegiance,  to  be  exacted  by  the  states,  shows  that  he 
understood  the  niceties  of  the  subject  as  well  as  any  casuist  in  or  out  of  Congress. 
This  topic  may  be  dismissed  by  reverting  here  to  the  fact,  that  in  February,  1778, 
Congress  prescribed  an  oath  or  affirmation,  to  be  taken  by  the  officers  of  the 


7G 


CONSTITUTIONAL  HISTORY. 


We  have  seen  that  the  powers  conferred  upon  Washington 
authorized  him  to  raise,  in  the  most  speedy  and  effectual  manner, 
sixteen  battalions  of  infantry,  in  addition  to  those  before  voted  by 
Congress,  three  regiments  of  artillery,  and  a corps  of  engineers ; 
and  also  to  apply  to  any  of  the  states  for  the  aid  of  their  militia 
Avhen  wanted.'  At  the  period  when  he  addressed  himself  to  this 
great  undertaking  of  forming  a new  army,  for  the  third  time,  the 
existing  force  which  he  had  with  him  in  and  around  New  Jersey 
Avas  about  to  be  dissolved.  The  additional  remments  of  the  resru- 
lar  line  Avere  to  be  raised  by  the  states,  and  upon  them  alone 
could  he  depend  for  the  supply  of  a neAv  army  Avith  Avhich  to 
commence  the  campaign  in  the  spring  of  177Y.  He  had  labored, 
he  said,  ever  since  he  had  been  in  the  service,  to  discourage  all 
kinds  of  local  attachments  and  distinctions  of  country,  denominate 
ing  the  Avhole  by  the  greater  name  of  American  ; but  he  had  found 
it  impossible  to  OA^ercome  prejudices. 

Two  causes  especially  embarrassed  his  efforts  in  the  formation 
of  the  neAv  army ; and  both  of  them  shoAV  how  powerful  AAmre  the 
centrifugal  forces  of  our  system  at  that  period,  and  hoAV  little  hold 
that  great  central  name  had  taken  upon  the  people  of  the  dif- 
ferent states.  One  of  these  causes  Avas  the  persistence  of  some  of 
the  states  m giving  extra  bounties  to  encourage  enlistments  into 
their  quotas  of  the  original  eighty-eight  battalions  not  yet  raised. 
The  bounty  alloAved  by  Congress  Avas  twenty  dollars  to  e\^ery 
soldier  enlisting  into  the  new  establishment  for  three  years  or 
during  the  war.  The  additional  bounty  offered  by  Massachusetts 
was  sixty-six  dollars  and  tAvo  thirds.  There  Avas  thus  an  induce- 
ment of  eighty-six  dollars  and  tAvo  thirds  offered  to  the  men 
then  in  the  service  of  the  United  States,  not  to  re-enlist  in  their 
old  regiments,  as  fast  as  their  term  of  service  expired,  but  to  go 
to  Massachusetts  and  enlist  in  the  fresh  quotas  Avhich  Avere  form- 


army,  and  all  otiiers  holding  office  under  Congress,  which  was  simply  a renun- 
ciation of  allegiance  to  the  King  of  Great  Britain,  an  acknowledgment  of  the 
independence  of  the  United  States,  and  a promise  to  support,  maintain,  and 
defend  them  against  King  George  III.  and  his  successors,  and  to  serve  the  United 
States  in  the  office  mentioned  with  fidelity,  and  the  best  skill  and  understanding 
of  the  party  taking  the  oath.  Journals,  IV.  49. 

^ Ante,  p.  09. 


THE  REVOLUTIONARY  GOVERNMENT. 


77 


ino-  in  that  state,  and  which  were  to  be  afterwards  mustered  into 
the  Continental  service.  The  same  inconsiderate  and  unpatriotic 
])olicy  was  pursued  in  all  the  Eastern  States,  and  before  the 
spring  opened  the  consequences  began  to  be  felt  in  the  state 
of  the  new  Continental  battalions  which  Washington  was  endeav- 
oring to  procure  from  some  of  the  Middle  States,  and  in  which  he 
would  not  sanction  the  allowance  of  an  extra  bounty,  regarding  it 
as  an  indirect  breach  of  the  union,  and  of  the  agreement  entered 
into  by  the  delegates  of  the  states  in  Congress  to  give  a bounty 
of  twenty  dollars  only  for  service  in  the  Continental  army.’  The 
month  of  April  arrived,  and  he  had  not  received  a man  of  the  new 
levies,  except  a few  hundreds  from  Jersey,  Pennsylvania,  and  Yir- 
ginia,  while  the  few  old  regiments  which  remained,  after  the  dis- 
solution of  the  army  in  January,  were  reduced  to  a handful  of 
men,  the  enemy  being  in  great  force,  and  making  every  prepara- 
tion to  seize  upon  Philadelphia. 

Nor  did  the  allowance  of  these  irregular  bounties  help  the  states 
in  raising  the  old  levies,  as  had  been  anticipated.  They  rather 
caused  the  soldiers  to  set  a high  price  upon  themselves,  and  to 
hold  back  from  enlisting ; while  the  second  cause  to  which  I have 
alluded  as  embarrassing  the  commander-in-chief  was  a great  hin- 
derance  to  his  efforts  to  plan  and  carry  out  a campaign  having 
for  its  object  the  general  benefit  of  the  whole  Union. 

This  cause  was  the  inability  of  many  local  authorities  to  com- 
prehend the  necessity  of  such  a campaign.  Washington  was,  at 
♦this  period,  harassed  by  numerous  applications  to  allow  the  troops, 
which  had  been  raised  in  the  states  for  the  service  of  the  conti- 
nent, to  remain  for  the  defence  of  particular  neighborhoods  against 
incursions  of  the  enemy.  Nothing,  he  said  on  one  of  these  occa- 
sions, could  exceed  the  pleasure  which  he  should  feel,  if  he  were 
able  to  protect  every  town  and  every  individual  on  the  continent. 
But  as  this  was  a pleasure  which  he  never  should  realize,  and  as 
the  Continental  forces  were  wanted  to  meet  and  counteract  the 
main  designs  of  the  enemy  on  the  principal  theatre  of  the  war,  he 
could  not  consent  to  divide  them  and  detach  them  to  every  point 
where  the  enemy  might  possibly  attempt  an  impression;  ‘‘for 


Letter  to  General  Knox,  February  11, 1777.  Writings,  IV.  316. 


T8 


CONSTITUTIONAL  HISTORY. 


that,”  he  added,  “ would  be  in  the  end  to  destroy  ourselves  and 
subjugate  our  country.” ' 

From  the  operation  of  these  and  other  causes  connected  with 
the  political  system  of  the  country,  the  army  with  which  Wash- 
ington was  obliged  to  take  the  field,  in  the  spring  of  1777,  did  not 
exceed  five  thousand  seven  hundred  and  thirty-eight  effective  men, 
exclusive  of  a small  body  of  cavalry  and  artillery.^  The  conse- 
quence was,  a necessary  reliance  upon  militia,  to  a great  extent, 
throughout  that  summer.  The  battle  of  the  Brandywine,  fought 
with  an  effective  force  of  only  eleven  thousand  men,  including 
militia,  against  a thoroughly  disciplined  army  of  fifteen  thousand 
British  and  Hessian  troops,  and  fought  for  the  city  of  Philadelphia 
as  a stake,  was  lost  on  the  11th  of  September.'  The  Congress 
broke  up  on  the  18th.  Sir  William  Howe  took  possession  of  the 
city  on  the  2Gth  ; and  on  the  27th  the  Congress  reassembled  at 
Lancaster.  In  a few  days  they  removed  to  Yorktown,  where 
their  sessions  continued  to  be  held  for  several  months. 

The  position  in  which  they  found  themselves,  amid  the  dark 
clouds  which  lowered  around  their  cause,  seems  to  have  recalled 
to  their  recollection  the  Articles  of  Confederation,  which  had  lain 
slumbering  upon  their  table  since  the  8th  of  April.  On  that  day 
they  had  resolved  that  the  report  should  be  taken  into  considera- 
tion on  the  following  Monday,  and  that  two  days  in  each  week 
should  be  employed  on  the  subject,  until  it  had  been  wholly  dis- 
cussed. When  the  Monday  came,  it  was  postponed ; and  it  was 
only  after  they  had  been  driven  from  Philadelphia  by  the  ap- 
proach of  the  enemy  that  they  seem  to  have  fully  realized  the 
fact  that,  without  a more  perfect  union  and  a more  efficient  gov- 

’ Letter  to  Governor  Trumbull,  May  11,  1777.  Writings,  IV.  413.  See  also 
Letter  to  Major-General  Stephen,  May  24,  1777.  Ibid.  431. 

^ Marshall’s  Life  of  Washington,  III.  102. 

^ The  exact  numbers  of  the  troops  on  both  sides,  in  this  battle,  are  not  known. 
Sir  William  Howe  estimated  the  American  force  at  15,000,  including  militia; 
and  this  number  is  given  in  the  Annual  Register.  But  the  etfective  force  of  the 
American  army  was  always,  at  this  period  of  the  war,  considerably  less  than  the 
total  number;  and  Chief  Justice  Marshall  states  it  to  have  been,  on  this  occa- 
sion, 11,000,  including  militia.  The  Annual  Register  gives  the  number  of  the 
royal  army  brought  into  action  as  15,000.  Marshall  supposes  it  to  liave  been 
18,000  when  they  landed  on  the  shores  of  the  Chesapeake.  Marshall’s  Life  of 
Washington,  HI.  140, 141.  Annual  Register  for  1777,  XX.  127. 


THE  REVOLUTIONARY  GOVERNMENT. 


79 


ernment,  the  country  could  not  be  saved.  As  soon  as  tliey  liad 
reassembled  at  Yorktown,  after  the  urgent  business  of  the  mo- 
ment had  been  attended  to,  they  passed  a resolve,  on  the  2d  of 
October,  that  the  Articles  of  Confederation  be  taken  into  con- 
sideration the  next  day,  at  eleven  o’clock.  The  discussion  did  not 
actually  commence,  however,  until  the  7th  of  October  ; but  from 
that  day  it  was  continued  until  the  17th  of  November,  when  the 
articles,  as  they  afterwards  went  into  operation,  were  adopted  for 
recommendation  to  the  states,  and  a circular  letter  was  addressed 
to  the  several  legislatures,  submitting  the  plan  of  a confederacy, 
and  urging  its  adoption. 

We  are  now  approaching  the  period  when  the  American  peo- 
ple began  to  perceive  that  something  more  was  necessary  to  their 
safety  and  happiness  than  the  formation  of  state  governments ; 
when  they  found,  or  were  about  to  find,  that  some  digested  sys- 
tem of  national  government  was  essential  to  the  great  objects  for 
which  they  Avere  contending ; and  that,  for  the  formation  of  such 
a government,  other  arrangements  than  the  varying  instructions 
of  different  colonies  or  states  to  a body  of  delegates  were  indis- 
pensable. The  previous  illustrations,  draAvn  from  the  civil  and 
military  history  of  the  country,  have  been  employed  to  show  the 
character  and  operation  of  the  revolutionary  government,  the  end 
of  Avhich  is  drawing  near.  For  we  have  seen  that  the  great  pur- 
pose of  that  government  Avas  to  secure  the  independence  of  each 
of  these  separate  communities  or  states  from  the  croAvn  of  Great 
Britain;  that  it  Avas  instituted  by  political  societies  havung  no 
direct  connection  with  each  other  except  the  bond  of  a common 
danger  and  a common  object ; and  that  it  Avas  formed  by  no  other 
instrumentality,  and  possessed  no  other  agency,  than  a single  body 
of  delegates  assembled  in  a congress.  For  certain  great  purposes, 
and  in  order  to  accomplish  certain  objects  of  common  interest,  a 
union  of  the  people  of  the  different  states  had  indeed  taken  place, 
bringing  them  together  to  act  through  their  represen tatiA^es ; but 
this  union  Avas  noAv  failing,  from  the  Avant  of  definite  powers ; 
from  the  unAvillingness  of  the  people  of  the  country  to  acquiesce 
in  the  exercise  of  the  general  revolutionary  poAvers  Avith  Avhich 
it  Avas  impliedly  clothed ; and  from  the  Avant  of  suitable  ciAul 
machinery.  In  truth,  the  revolutionary  government  Avas  break- 


80 


CONSTITUTIONAL  HISTORY. 


ing  down,  through  its  inherent  defects,  and  the  peculiar  infelicity 
of  its  situation.  Above  all,  it  was  breaking  down  from  the  want 
of  a civil  executive  to  take  the  lead  in  assuming  and  exercising 
the  powers  implied  from  the  great  objects  for  which  it  was  con- 
tending. Its  legislative  autliority,  although  defined  in  no  written 
instruments  or  public  charters,  was  sufficient,  under  its  implied 
general  powers,  to  have  enabled  it  to  issue  decrees  directing  the 
execution,  by  its  own  agents,  of  all  measures  essential  to  the 
national  safety.  But  this  authority  was  never  exercised,  partly 
because  the  states  were  unwilling  to  execute  it,  but  chiefly  be- 
cause no  executive  agency  existed  to  represent  the  Continental 
power  and  to  enforce  its  decrees. 

It  is  a singular  circumstance  that,  while  the  revolutionary  gov- 
ernment was  left  to  conduct  the  great  affairs  of  the  continent 
through  the  mere  instrumentality  of  a congress  of  delegates,  and 
was  thus  failing  for  the  want  of  departments  and  powers,  the 
states  were  engaged  in  applying  those  great  principles  in  the  or- 
ganization and  construction  of  popular  governments,  under  which 
they  may  be  formed  with  rapidity  and  ease,  and  which  are  capa- 
ble of  the  most  varied  adaptation  to  the  circumstances  and  wants 
of  a free  people. 

The  suppression  of  the  royal  authority  throughout  the  colonies, 
by  virtue  of  the  resolve  of  the  Continental  Congress  passed  on  the 
10th  of  May,  1776,  rendered  necessary  the  formation  of  local  gov- 
ernments, capable  at  once  of  answering  the  ends  of  political  so- 
ciety, and  of  continuing  without  interruption  the  protection  of 
law  over  property,  life,  and  public  order.  Fortunately,  as  we 
have  seen,  the  previous  constitutions  of  all  the  colonies  had  ac- 
customed the  people,  to  a great  extent,  to  the  business  of  gov- 
ernment ; and  when  the  recommendation  of  the  Continental  Con- 
gress to  the  several  colonies  to  adopt  such  governments  as  would 
best  conduce  to  their  happiness  and  safety  was  made  immediately 
after  the  first  effusion  of  blood,  it  was  addressed  to  civil  societies, 
in  which  the  people  had,  in  different  modes,  been  long  accustomed 
to  witness  and  to  exercise  the  functions  of  legislation,  and  in  all 
of  which  there  were  established  forms  of  law,  of  judicature,  and 
of  executive  power. 

The  new  political  situation  in  which  they  now  found  them- 


THE  REVOLUTIONARY  GOVERNMENT. 


81 


selves  required,  in  many  of  the  colonies,  but  little  departure  from 
these  ancient  institutions.  The  chief  innovation  necessary  was, 
to  bring  into  practical  working  the  authority  of  the  people,  in 
place  of  that  of  the  crown  of  England,  as  the  source  of  all  politi- 
cal power.  Tlie  changes  requisite  to  effect  this  were  of  course  to 
be  made  at  once ; the  materials  for  these  changes  existed  every- 
where, in  the  representative  institutions  which  had  been  long  a 
part  of  the  system  of  every  colony  since  the  first  settlement  of 
the  country.  Thus,  as  w^e  have  seen,  in  all  the  provincial,  the  pro- 
prietary, and  the  charter  governments,  the  freemen  of  the  colony 
had  been  accustomed  to  be  represented  in  the  government,  in  some 
form  ; and  although  those  governments,  with  a few  exceptions, 
were  under  the  direct  or  indirect  restraint  of  the  crown,  and  could 
all  be  reached  and  controlled  by  the  exercise  of  arbitrary  power, 
the  practice  of  representation,  through  popular  elections,  was 
everywhere  known  and  familiar.  The  old  constitutions  of  some 
of  the  colonies  had  also  been  highly  democratic,  admitting  an  elec- 
tion of  the  executive,  as  well  as  of  the  legislature,  directly  by  the 
people ; ' while,  in  others,  where  the  executive  w^as  appointed  by 
the  crown,  the  second  or  less  numerous  branch  of  the  leo-isla- 
ture  had  been  elected  by  the  people,  either  directly,  or  indirectly 
through  the  popular  assembly.  The  foundations,  therefore,  for 
popular  governments  existed  in  all  the  colonies,  and  furnished  the 
means  for  substituting  the  new  source  of  political  powder,  the  will 
of  the  people,  in  the  place  of  that  of  an  external  sovereign. 

But  there  were  other  materials,  also,  for  the  formation  of  regu- 
lar and  balanced  governments,  with  nearer  approaches  to  perfec- 
tion and  with  far  greater  completeness  than  a mere  democracy 
can  afford  to  any  people,  however  familiar  they  may  be  with  the 
exercise  and  the  practice  of  government.  The  people  of  these 
colonies  had  been  so  trained  as  to  be  able  to  apply  those  prin- 
ciples in  the  construction  and  operation  of  government  which 
enable  it  to  work  freely,  successfully,  and  wisely,  w^hile  resting  on 
a popular  basis.  They  were  able  to  see  that  the  wiiole  of  what 
is  meant  and  understood  by  government  is  comprehended  in  the 
existence  and  due  operation  of  legislative,  executive,  and  judicial 
powders.®  They  had  lived  under  political  arrangements,  in  which 


^ Connecticut  and  Rhode  Island.  2 Adams’s  letter  to  R.  H.  Lee. 

L— 6 


82 


CONSTITUTIONAL  HISTORY. 


these  powers  had  been  distributed  so  as  to  keep  them  for  the 
most  part  distinct  from  each  other,  and  so  as  to  mark  the  proper 
limitations  of  each.  If,  in  some  instances,  the  same  individuals 
had  exercised  more  than  one  of  these  powers,  the  distinctions  be- 
tween the  departments,  and  the  principles  which  ought  to  regu- 
late such  distinctions,  had  become  known.  The  people  of  the 
colonies,  in  general,  therefore,  saw  that  nothing  Avas  so  impor- 
tant, in  constructing  a government  Avith  popular  institutions,  as 
to  balance  each  of  these  departments  against  the  others,  so  as 
to  leave  to  neither  of  them  uncontrolled  and  irresponsible  power. 
In  general,  too,  they  understood,  and  had  ahvays  been  accustomed 
to  the  application  of  that  other  fundamental  principle,  essential 
to  a AA^ell-regulated  liberty,  the  division  of  the  legislative  poAA^er 
betAveen  tAA^o  separate  chambers,  having  distinct  origins  and  of 
distinct  constructions.  ‘ 


^ Three  of  tlie  colonies,  namely,  New  Hampshire,  South  Carolina,  and  Vir- 
ginia, proceeded  to  form  constitutions  of  government  before  the  Declaration  of 
Independence  was  adopted,  under  a special  recommendation  given  to  each  of 
them  by  Congress,  in  the  latter  part  of  the  year  1775,  addressed  to  tliQ.  provin- 
cial convention,  advising  them  “ to  call  a full  and  free  representation  of  the  peo- 
ple, to  establish  such  a form  of  government  as  in  their  judgment  will  best  pro- 
mote the  happiness  of  the  people,  and  most  effectually  secure  good  order  in  the 
province  during  the  continuance  of  the  present  dispute  between  Great  Britain 
and  the  colonies”  (Journals,  I.  231,  235,  279).  In  New  Hampshire  this  sug- 
gestion was  carried  out  in  January,  1776,  by  the  representatives  of  the  people, 
Avho  h.ad  first  met  as  a provincial  congress  of  deputies  from  the  towns,  and  then 
assumed  the  name  and  authority  of  a ” house  of  representatives,”  or  “assembly  ” 
of  the  colony;  in  which  capacity  they  proceeded  to  elect  twelve  persons  from 
the  several  counties,  to  form  a distinct  branch  of  the  legislature,  as  a council. 
The  council  were  to  elect  their  own  presiding  officer.  All  acts  and  resolves,  to 
be  valid,  were  required  to  pass  both  branches;  all  public  officers,  except  clerks 
of  courts,  were  to  be  appointed  by  the  two  houses,  and  all  money  bills  were  to 
originate  in  the  popular  branch.  In  case  tlie  dispute  with  Great  Britain  should 
continue  longer  than  the  year  1776,  and  the  general  Congress  should  not  give 
other  instructions,  it  was  provided  that  the  council  should  be  chosen  l)y  the 
people  of  each  county,  in  a mode  to  be  prescribed  by  the  council  and  liouse. 
This  form  of  government  continued  through  the  Revolution,  and  until  the  year 
1790,  Avhen  a new  constitution  was  formed  (Pitkin’s  Plistory  of  the  United 
States,  II.  294).  In  South  Carolina  the  Provincial  Congress  likewise  resolved 
itself  a “general  assembly,”  and  elected  a legislative  council  from  their  own 
body.  By  these  two  bodies,  acting  jointly,  an  executive,  styled  a president,  a 
commander-in-chief,  and  a vice-president,  were  chosen.  The  legislative  authority 


I 


THE  KEVOLUTIONAK  Y GOVERNMENT. 


83 


But  none  of  tliese  ideas  were  applied,  or  were  yet  thought  of 
being  ap])lied,  to  the  construction  of  a government  for  the  United 
States ; and  it  is  tlierefore  at  this  period  that  we  are  to  observe 


was  vested  in  the  president  and  tlie  two  houses.  The  judiciary  were  elected 
by  the  two  houses  and  commissioned  by  the  president,  and  were  to  liold  tlieir 
offices  during  good  behavior,  subject  to  removal  on  the  address  of  both  houses. 
This  form  of  gt)vernment  remained  until  June,  1790,  wlien  a new  constitution 
was  formed  by  a convention.  On  the  15th  of  May,  1776,  the  Provincial  Conven- 
tion of  Virginia  proceeded  to  prepare  a declaration  of  rights  and  a constitution. 
The  latter  declared  that  the  legislative,  executive,  and  judiciary  departments 
ought  to  be  distinct  and  separate,  and  divided  the  legislative  department  into 
two  brandies,  the  house  of  delegates  and  the  senate,  to  be  called  “the  General 
Assembly  of  Virginia.”  The  members  of  the  house  of  delegates  were  chosen 
from  each  county,  and  one  from  the  city  of  Williamsburg,  and  one  from  the 
borough  of  Norfolk.  The  senate  consisted  of  twenty-four  members,  chosen  from 
as  many  districts.  A governor  and  council  of  state  were  chosen  annually  by 
joint  ballot  of  both  houses.  The  legislature  appointed  the  judges,  who  were 
commissioned  by  the  governor,  and  held  their  offices  during  good  behavior. 
Massachusetts  was  one  of  the  colonies  whose  situation  rendered  it  necessary  to 
defer  the  formation  of  a constitution  for  several  years.  The  transition  in  that 
colony  from  the  government  of  the  king  to  a government  of  the  people  took 
place  in  the  latter  part  of  the  year  1774  and  the  beginning  of  1775.  The  occur- 
rences which  led  the  House  of  Representatives  to  resolve  themselves  into  a 
provincial  congress  have  been  stated  in  the  text  of  a previous  chapter  (ante, 
p.  26).  This  body,  which  assumed  the  control  of  the  affairs  of  the  colony  in  Oc- 
tober, 1774,  first  assembled  at  Cambridge,  where  they  continued  in  session  until 
the  10th  of  December,  and  then  dissolved  themselves,  having  first  appointed  a 
Committee  of  Safety  to  manage  the  public  concerns,  until  a new  congress  should 
be  assembled.  On  the  1st  of  February,  1775,  a new  provincial  congress  met  at 
Cambridge,  adjourned  to  Concord,  and  thence  to  Watertown,  and  were  dissolved 
on  the  23d  of  May.  On  the  16th  of  May  they  wrote  to  the  Continental  Con- 
gress, requesting  their  advice  on  “ taking  up  and  exercising  the  powers  of  civil 
government.”  In  their  letter  they  said,  “ As  the  sword  should  in  all  free  states 
be  subservient  to  the  civil  powers,  and  as  it  is  the  duty  of  the  magistrate  to  sup- 
port it  for  the  people’s  necessary  defence,  we  tremble  at  having  an  army, 
although  consisting  of  our  own  countrymen,  established  here,  without  a civil 
power  to  provide  for  and  control  them.”  On  the  9th  of  June  the  Continental 
Congress  passed  a resolve,  recommending  the  election  of  a new  General  Assem- 
bly, under  the  directions  of  the  Provincial  Congress,  and  that  the  assembly, 
when  chosen,  should  exercise  the  powers  of  government  until  a governor  of  the 
king’s  appointment  would  consent  to  govern  the  colony  according  to  its  charter 
(Journals,  I.  115).  Meanwhile  a third  Provincial  Congress  met  at  Watertown, 
on  the  31st  of  May,  and  sat  until  the  19th.  The  new'  General  Assembly  of  the 


84 


CONSTITUTIONAL  HISTORY. 


the  slow  progress  making,  through  disaster  and  trial,  to  those 
great  discoveries  which  led  the  way  to  the  Constitution,  and  that 
we  are  to  mark  the  first  of  those  failures  by  which  the  people  of 
America  learned  the  bitter  wisdom  of  experience.  For  the  fate 
of  the  revolutionary  government  presents  the  first  illustration  in 
our  history  of  the  complete  futility  of  a federative  union  whose 
operation  as  a government  should  consist  merely  in  agreeing  upon 
measures  in  a general  council,  leaving  the  execution  of  those  meas- 
ures to  the  separate  members  of  the  confederacy.  But  this  first 
illustration,  we  shall  soon  see,  was  not  sufficient  to  establish  this 
truth  in  the  convictions  of  the  American  people. 

Another  and  a severer  trial  awaited  them.  They  were  not 
only  to  be  taught  once  more  that  a mere  federative  union  Avas  a 
rope  of  sand,  but  they  were  also  to  be  taught  that  a government 
instituted  upon  this  principle  for  the  purposes  of  a Avar,  in  Avhich 
the  separate  members  of  the  confederacy  had  a common  interest, 
Avould  not  ansAver  the  exigencies  of  a country  like  this  in  time  of 
peace.  They  Avere  to  learn,  by  a trying  experience,  that  the  vast 
concerns  of  peace  are  far  more  complex  than  the  concerns  of  Avar ; 
that  there  Avere  important  functions  of  government  to  be  discharged 
upon  this  continent,  Avhich  only  national  poAver  and  national  au- 
thority can  accomplish,  and  that  those  functions  are  essential,  not 
only  to  the  prosperity  and  happiness  of  this  nation,  but  to  the 
continued  existence  of  republican  liberty  Avithin  the  states  them- 


Province,  called  “ the  General  Court,”  after  its  ancient  usage,  met  in  the  mode 
provided  by  the  charter,  and  elected  a council.  These  two  branches  continued 
to  administer  the  government,  as  nearly  in  the  spirit  of  the  charter  as  might  be, 
without  a governor,  until  1780,  when  a convention  was  called  and  a constitution 
framed,  similar  in  all  its  main  features  to  the  present  constitution  of  the  state. 
The  constitutions  of  the  other  states  were  formed  under  the  general  recommenda- 
tion of  the  resolve  of  Congress  of  May  10th,  1776,  addressed  to  all  the  colonies, 
which  contemplated  the  formation  of  permanent  governments,  and  dissolved  the 
allegiance  of  the  people  to  the  crown  of  Great  Britain.  The  constitutions  of 
New  Jersey,  Maryland,  Delaware,  and  North  Carolina  were  formed  in  1776,  and 
that  of  New  York  in  April,  1777;  all  having  three  branches,  the  legislative, 
the  executive,  and  the  judiciary,  and  all  having  a legislature  consisting  of  two 
houses.  The  constitution  of  Georgia  was  formed  in  1789,  after  the  same  general 
model.  That  of  Pennsylvania  was  formed  in  1776,  with  a legislature  consisting 
of  a single  branch,  but  with  the  like  division  of  the  legislative,  executive,  and 
judicial  departments. 


THE  REVOLUTIONARY  GOVERNMENT. 


85 


selves.  They  were  to  learn  this  througli  a state  of  things  verging 
upon  anarchy;  amid  tlie  decay  of  public  virtue,  the  conflict  of 
sectional  interests,  and  the  almost  total  dissolution  of  the  bands 
by  which  society  is  held  together.  In  this  state  of  things  was  to 
be  at  last  develo})ed  the  fundamental  idea  on  which  the  Constitu- 
tion of  the  United  States  now  rests — the  political  union  of  tlie 
lyeople  of  the  United  States  for  certain  limited  purposes,  as  distin- 
guished from  a union  of  the  states  of  which  they  are  citizens. 

We  have,  therefore,  now  reached  the  first  stage  in  the  consti- 
tutional history  of  the  country.  What  has  thus  far  been  stated 
comes  to  a single  point,  the  earliest  great  illustration  of  the  radi- 
cal defects  in  a purely  federative  union.  The  next  stage  which 
succeeds  presents  the  second  illustration  of  this  important  truth. 


CHAPTEE  y. 

November,  1777 -]\[  arch,  1781. 

Adoption  of  the  Articles  of  Confederation. — Cessions  of  West- 
ern Territory. — First  Political  Union  of  the  States. 

We  have  now  to  examine  the  period  which  intervened  between 
the  recommendation  of  the  Confederation  by  Congress,  in  ]^ovem- 
ber,  1777,  and  its  final  adoption  by  all  the  states,  in  March,  1781, 
a period  of  three  years  and  a half.  The  causes  which  protracted 
the  final  assent  of  the  states  to  the  new  government,  and  the 
mode  in  which  the  various  objections  were  at  length  obviated,  are 
among  the  most  important  topics  in  our  constitutional  history. 
But,  before  they  are  examined,  the  order  of  events  by  which  the 
Confederation  finally  became  obligatory  upon  all  the  states  should 
here  be  stated. 

The  last  clause  of  the  Articles  of  Confederation  directed  that 
they  should  be  submitted  to  the  legislatures  of  all  the  states  to  be 
considered ; and  if  approved  of  by  them,  they  were  advised  to 
authorize  their  delegates  to  ratify  the  instrument  in  Congress; 
upon  which  ratification  it  was  to  become  binding  and  conclusive. 
On  the  20th  of  June,  1778,  a call  was  made  in  Congress  for  the 
report  of  the  delegations  on  the  action  of  their  several  states,  and 
on  the  26th  of  the  same  month  a form  of  ratification  was  adopted 
for  signature.  On  the  9th  of  July  the  ratification  was  signed  by 
the  delegates  of  eight  states : Uew  Hampshire,  Massachusetts, 
Ehode  Island,  Connecticut,  Hew  York,  Pennsylvania,  Virginia, 
aijd  South  Carolina.  Horth  Carolina  ratified  the  Articles  on  the 
21st  of  July;  Georgia  on  the  21th;  Hew  Jersey  on  the  26th  of 
Hovember ; Delaware  on  the  5th  of  May,  1779  ; Maryland  on  the 
1st  of  March,  1781.  On  the  2d  of  March,  1781,  Congress  met  un- 
Mer  the  Confederation. 

Undoubtedly  one  of  the  causes  which  deferred  the  full  adop- 


THE  CONFEDERATION. 


87 


tioii  of  the  Confederation  to  so  late  a period  after  it  was  ])roposed 
was  the  absence  from  Congress  of  many  of  the  most  important 
and  able  men,  whose  attention  had  hitherto  been  devoted  to  the 
affairs  of  the  continent,  but  who  began  to  be  occupied  with  local 
affairs  soon  after  the  extraordinary  powers  Avere  conferred  upon 
AVashington.  In  October,  1Y77,  Hancock  left  the  chair  of  Con- 
gress for  an  absence  of  two  months  ; and  the  votes  on  a resolu- 
tion of  thanks  to  him  for  his  services  as  presiding  officer  show 
a great  paucity  of  talent  in  Congress  at  that  moment.*  Twenty- 
two  members  only  Avere  present,  and  of  these  the  only  names 
much  knoAvn  to  fame,  at  that  time  or  since,  Avere  those  of  Samuel 
Adams,  John  Adams,  and  Elbridge  Gerry  of  Massachusetts,  the 
tAvo  Lees  of  Virginia,  HayAvard  and  Laurens  of  South  Carolina, 
and  Samuel  Chase  of  Maryland.  Franklin,  Arthur  Lee,  and  Silas 
Deane  Avere  then  in  France.  Patrick  Henry  Avas  Governor  of 
Virginia.  Mr.  Jefferson  Avas  in  the  Legislature  of  Virginia,  ha\dng 
left  Congress  in  September,  in  order,  as  he  has  himself  recorded, 
to  reform  the  legislation  of  the  state,  which,  under  the  royal 
government,  Avas,  he  says,  full  of  vicious  defects.’*  Mr.  Madison 
Avas  also  in  the  legislature  of  his  native  state,  a young  man  of 
great  promise,  but  unknoAvn  at  that  time  as  a continental  states- 
man. He  entered  Congress  in  March,  1780. 

In  the  year  1778,  when  the  delegations  Avere  called  upon  for 
reports  on  the  action  of  their  seAwal  states  upon  the  Confedera- 
tion, and  Avhen  the  first  objections  to  the  Articles  Avere  to  be  encoun- 
tered, Hancock  had  returned  to  Congress.  Samuel  Adams  and 
Elbridge  Gerry  were  among  his  colleagues  from  Massachusetts. 
John  Adams  Avas  in  Europe,  as  Commissioner  of  the  United  States 
to  the  court  of  France.  Dr.  Franklin  Avas  still  abroad.  Pichard 
Henry  Lee  of  Virginia,  Laurens  and  HayAA^ard  of  South  Carolina, 


' Hancock  retired  on  the  31st  of  October,  for  a short  absence,  after  an  unre- 
mitted  service  of  two  years  and  five  months  in  the  cliair.  A vote  of  thanks  was 
moved,  as  soon  as  he  had  concluded  his  address ; but  before  the  question  was 
put,  it  was  moved  “ to  resolve,  asAhe  opinion  of  Congress,  that  it  is  improper  to 
thank  any  president  for  the  discharge  of  the  duties  of  that  otRce;”  and  it  is  a 
curious  fact  tliat  on  this  motion  the  states  were  equally  divided.  The  previous 
motion  was  then  put,  and  five  states  voted  in  the  affirmative,  three  in  the  nega- 
tive, and  the  delegation  of  one  state  was  divided.  Journals,  III.  465-467. 

^ Writings  of  Jefferson,  I.  29. 


88 


CONSTITUTIONAL  HISTORY. 

lioger  Sherman,  Samuel  Huntington,  and  Oliver  Wolcott  of  Con- 
necticut, and  Eobert  Morris  of  Pennsylvania,  were  present.  The 
rest  of  the  members,  with  one  brilliant  excejrtion,  were  not  men 
of  great  distinction,  influence,  or  capacity.  That  exception  was 
Gouverneur  Morris,  who  came  into  Congress  in  January  of  this 
year,  with  a somewhat  remarkable  youthful  reputation,  acquired 
in  the  jmblic  councils  of  'New  York. 

Wlien  this  Congress  is  compared  with  that  of  the  year  1776, 
and  it  is  remembered  that  the  Declaration  of  Independence  bears 
the  names  of  John  Adams  and  Kobert  Treat  Paine  of  Massachu- 
setts, Francis  Ilopkinson  of  Yew  Jersey,  Benjamin  Kush  and  Dr. 
Franklin  of  Pennsylvania,  Cmsar  Rodney  of  Delaware,  Samuel 
Chase  of  Maryland,  George  Wythe,  Thomas  Jefferson,  and  Ben- 
jamin Harrison  of  Virginia,  William  Hooper  of  Yorth  Carolina, 
and  Edward  Rutledge  and  Arthur  Middleton  of  South  Carolina— 
none  of  whom  were  now  present— we  perceive  at  once  a striking 
difference  in  the  two  bodies.  This  difference  was  not  unobserved 
by  those  who  were  then  deeply  interested  in  watching  the  course 
of  public  affairs.  More  than  once  it  filled  TFashington  with  dark 
forebodings ; ^ and  in  the  early  part  of  the  year  1778  it  had  at- 
tracted the  notice  of  Hamilton,  whose  vigilant  comprehension  sur- 
veyed the  whole  field  of  public  affairs,  and  detected  the  causes  of 
every  danger  that  threatened  the  health  of  the  body  politic." 


J Writings  of  Washington,  V.  32G,  327,  350. 

^ “America  once  had  a representation  that  would  do  honor  to  any  age  or  na- 
tion. The  present  falling  off  is  very  alarming  and  dangerous.  What  is  the 
cause?  and  how  is  it  to  be  remedied?  are  questions  that  the  welfare  of  these 
states  lequiies  should  be  well  attended  to.  The  great  men  who  composed  our 
first  council — are  they  dead,  have  they  deserted  the  cause,  or  what  has  become 
of  them  ? Very  few  are  dead,  and  still  fewer  have  deserted  the  cause  : they  are 
all,  except  the  few  who  still  remain  in  Congress,  either  in  the  field,  or  m the 
civil  offices  of  their  respective  states  5 far  the  greater  part  are  engaged  in  the 
lattei.  The  only  remedy,  then,  is  to  take  them  out  of  these  emjjloyments,  and 
return  them  to  the  place  where  their  presence  is  infinitely  more  important.  Each 
state,  in  order  to  promote  its  own  internal  government  and  prosperity,  has  se- 
lected its  best  members  to  fill  the  offices  within  itself,  and  conduct  its  own  af- 
fairs. Men  have  been  fonder  of  the  emoluments  and  conveniences  of  being  em- 
ployed at  home;  and  local  attachment,  falsely  ojjerating,  has  made  them  more 
provident  for  the  particular  interests  of  the  states  to  which  they  belonged  than 
for  the  common  interests  of  the  Confederacy.  This  is  a most  pernicious  mistake. 


THE  CONFEDERATION. 


89 


Tlie  objections  nnule  by  the  legislatures  of  several  of  the  states 
to  the  Articles  of  Confederation  Avere  found,  when  examined,  to 
consist  almost  entirely  of  propositions  for  mere  verbal  amend- 
ments, chiefly  for  the  ])urpose  of  rendering  the  instrument  more 
clear.  All  of  these  amendments  were  rejected.  Some  of  the 
states  objected  to  the  rule  for  apportioning  the  taxes  and  forces 
to  be  raised  by  the  states  for  the  service  of  the  Union;  but  Con- 
gress rejected  ever}"  proposition  to  alter  it,  as  it  was  believed  to 
be  impossible  that  any  other  rule  should  be  agreed  upon. 

But  there  Avas  an  objection  made  by  the  state  of  fS'ew  Jersey 
which  should  be  particularly  noticed  here,  because  it  foreshadowed 
one  great  idea  which  the  Constitution  of  the  United  States  after- 
Avards  embodied.  This  objection  Avas,  that  the  Articles  of  Con- 
federation contained  no  provision  by  av Inch  the  foreign  trade  of 
the  country  Avould  be  placed  under  the  regulation  of  Congress. 
The  sixth  of  the  Articles  of  Confederation  declared  that  no  state 
should  leAy  any  imposts  or  duties  Avhich  might  interfere  AA-ith  any 
stipulations  entered  into  by  the  United  States  Avith  any  foreign 
poAver,  pursuant  to  the  treaties  already  proposed  to  the  courts  of 
France  and  Spain ; Avhile  the  ninth  article  declared  that  no  treaty 
of  commerce  should  be  made  by  the  United  States  Avhereby  the 
legislative  poAver  of  the  respective  states  should  be  restrained  from 
imposing  such  imposts  and  duties  on  foreigners  as  their  own 
people  Avere  subjected  to,  or  from  prohibiting  the  exportation  or 
importation  of  any  species  of  goods  or  commodities  Avhatsoever. 
The  effect  of  these  provisions  Avas  simply  to  restrain  the  states 

and  must  be  corrected.  However  important  it  is  to  give  form  and  efficiency  to 
yonr  interior  constitutions  and  police,  it  is  infinitely  more  important  to  have  a 
wise  general  council ; otherwise  a failure  of  the  measures  of  the  Union  will  over- 
turn all  your  labors  for  the  advancement  of  your  particular  good,  and  ruin  the 
common  cause.  You  should  not  beggar  the  councils  of  the  United  States  to 
enrich  the  administration  of  the  several  members.  Realize  to  yourself  the  con- 
sequences of  having  a Congress  despised  at  home  and  abroad.  Hov»^  can  the 
common  force  be  exerted,  if  the  power  of  collecting  it  be  put  in  weak,  foolish, 
and  unsteady  hands?  How  can  we  hope  for  success  in  our  European  negotia- 
tions, if  the  nations  of  Europe  have  no  confidence  in  the  wisdom  and  vigor  of  the 
great  Continental  government  ? This  is  the  object  on  which  their  eyes  are  fixed ; 
hence  it  is,  America  will  derive  its  importance  or  insignificance  in  their  estima- 
tion.” Letter  by  Hamilton  to  George  Clinton,  written  from  the  headquarters 
of  the  army,  February  13,  1778.  Writings  of  Washington,  V.  508. 


90 


CONSTITUTIONAL  HISTORY. 


from  la}0ng  imposts  which  would  interfere  with  the  then  pro- 
posed treaties;  in  all  othef  respects  the  foreign  trade  of  each 
state  was  left  to  be  regulated  by  state  legislation. 

The  legislature  of  Xew  Jersey,  in  a very  able  memorial,  laid 
before  Congress  on  the  25th  of  June,  1778,  declared  that  the  sole 
and  exclusive  power  of  regulating  the  trade  of  the  United  States 
with  foreign  nations  ought  to  be  clearly  vested  in  the  Congress, 
and  that  the  revenue  arising  from  duties  and  customs  ought  to  be 
appropriated  to  the  building  and  support  of  a navy  for  the  protec- 
tion of  trade  and  the  defence  of  the  coasts,  and  to  other  public  and 
general  purposes,  for  the  common  benefit  of  the  states.  They  sug- 
gested that  a great  security  would  be  derived  to  the  Union  from 
such  an  establishment  of  a common  and  mutual  interest.'  But 
this  suggestion  was  both  premature  and  tardy.  It  was  premature 
because  the  states  had  not  yet  learned  that  their  control  over  for- 
eign commerce  must  be  surrendered,  if  they  would  avoid  the  evils 
of  perpetual  conflict  with  each  other ; and  it  came  too  late,  because 
the  Articles  of  Confederation  were  practically  incapable  of  amend- 
ment at  the  period  when  the  suggestion  was  made." 

The  great  obstacle,  however,  to  the  adoption  of  the  Confedera- 
tion, which  delayed  the  assent  of  several  of  the  smaller  states  for 
so  long  a period,  was  the  claim  of  some  of  the  larger  states  to 
the  vacant  lands  lying  within  what  they  considered  their  rightful 

^ Journals,  IV.  269,  270.  This  wise  and  well-considered  document  contained 
many  other  very  important  suggestions,  among  which  was  that  of  an  oath,  test, 
or  declaration,  to  be  taken  by  the  delegates  in  Congress  previous  to  their  admis- 
sion to  their  seats.  “ It  is  indeed  to  be  presumed,”  said  the  memorial,  “ that  the 
respective  states  will  be  carefid  tliat  the  delegates  they  send  to  assist  in  manag- 
ing the  general  interests  of  the  Union  take  the  oaths  to  the  government  from 
which  they  derive  their  authority;  but  as  the  United  States,  collectively  con- 
sidered, have  interests  as  well  as  each  jjarticular  state,  we  are  of  opinion  that 
some  test  or  obligation,  binding  upon  each  delegate  while  he  continues  in  the 
trust,  to  consult  and  pursue  the  former  as  well  as  the  latter,  and  particularly  to 
assent  to  no  vote  or  proceeding  which  may  violate  the  general  confederation,  is 
necessary.  The  laws  and  usages  of  all  civilized  nations  evince  the  propriety  of 
an  oath  on  such  occasions,  and  the  more  solemn  and  important  the  deposit  the 
more  strong  and  explicit  ought  the  obligation  to  be.” 

2 Tliree  states  only  voted  in  favor  of  adopting  any  of  the  suggestions  made  by 
New  Jersey;  six  voted  against  them,  and  one  was  divided.  Journals,  IV.  272. 


THE  CONFEDERATION. 


91 


boundaries.  The  boundaries  of  the  g*reat  states,  as  fixed  by  their 
charters  derived  from  the  crown  of  P]ng-land,  extended,  in  terms, 
“ to  the  South  Sea and  eacli  of  these  states,  as  successor,  by  the 
Eevolution,  to  the  crown,  with  regard  to  territorial  sovereignty, 
claimed  to  own  both  the  jurisdiction  and  the  property  of  all  the 
crown  lands  within  its  limits.  This  claim  was  strenuously  resisted 
by  Rhode  Island,  Delaware,  New  Jersey,  and  Maryland.  They 
insisted  that  Congress  ought  to  have  the  right  to  fix  the  bounda- 
ries of  the  states  whose  charters  stretched  to  such  an  indefinite 
extent  into  the  western  wilderness,  and  that  the  unoccupied  lands 
ought  to  be  the  property  of  the  whole  Union ; since,  if  the  inde- 
pendence of  the  country  should  be  finally  established,  those  lands 
would  have  been  conquered  from  the  crown  of  England  by  the 
common  blood  and  treasure  of  all  the  states.  The  effect  of  a tacit 
recognition  of  the  claims  of  the  great  states  upon  the  welfare  of 
such  a state  as  Maryland,  through  the  absence  from  the  Articles 
of  Confederation  of  any  provision  on  the  subject,  was  strikingly 
exhibited  by  its  legislature  in  certain  instructions  to  their  dele- 
gates in  Congress,  which  were  laid  before  that  body  on  the  21st 
of  May,  1779.  They  pointed  out  two  consequences  likely  to  result 
from  a confirmation  of  the  claim  which  Virginia  had  set  up  to  an 
extensive  and  fertile  country ; the  one  would  be,  they  said,  directly 
injurious  to  Maryland,  while  the  other  would  be  inconsistent  with 
the  letter  and  spirit  of  the  proposed  Confederation.  They  sup- 
posed, on  the  one  hand,  that  a sale  by  Virginia  of  only  a small 
proportion  of  these  lands  would  draw  into  her  treasury  vast  sums 
of  money,  enabling  her  to  lessen  her  taxes,  and  thereby  to  drain 
the  less  Avealthy  neighboring  state  of  its  most  useful  inhabitants, 
Avhich  Avould  cause  it  to  sink,  in  Avealth  and  consequence,  in  the 
scale  of  the  confederated  states.  On  the  other  hand,  they  sug- 
gested that  Virginia  might,  and  probably  Avould,  be  obliged  to 
divide  its  territory,  and  to  erect  a new  state,  under  the  auspices 
and  direction  of  the  elder,  from  Avhom  it  would  receive  its  form  of 
government,  to  Avhom  it  Avould  be  bound  by  some  alliance,  and  by 
Avhose  counsel  it  Avould  be  influenced.  They  declared  that,  if  this 
Avere  to  take  place,  it  Avould  be  inconsistent  Avith  the  letter  and 
spirit  of  the  confederation  already  proposed ; that,  if  it  Avere  to 
result  in  the  establishment  of  a sub-confederacy,  an  imperium  in 
imperio^  the  state  possessed  of  this  extensive  dominion  must  then 


D2  CONSTITUTIONAL  HISTORY. 

either  submit  to  all  the  inconveniences  of  an  overgrown  and 
unwieldy  government,  or  suffer  the  authority  of  Congress  to 
interpose  at  a future  time,  and  lop  off  a part  of  its  territory  to 
be  erected  into  a new  and  free  state,  and  admitted  into  a confed- 
eration on  such  conditions  as  should  be  settled  by  nine  states.  If, 
they  asked,  it  should  be  necessary,  for  the  happiness  and  tranquil- 
lity of  a state  thus  overgrown,  that  Congress  sliould,  at  some  fut- 
ure time,  interfere  and  divide  its  territory,  why  should  the  claim 
to  that  territory  be  now  made  and  insisted  upon?  Policy  and 
justice,  they  urged,  alike  required  that  a country— unsettled  at  the 
commencement  of  the  war,  claimed  by  the  British  crown  and  ceded 
to  it  by  the  Treaty  of  Paris — if  wrested  from  the  common  enemv 
by  the  blood  and  treasure  of  the  thirteen  states,  should  be  consid- 
ered as  a common  property,  subject  to  be  parcelled  out  by  Con- 
gress into  free,  convenient,  and  independent  governments,  in  such 
manner  and  at  such  times  as  their  wisdom  might  thereafter  di- 
rect. Coolly  and  dispassionately  considering  the  subject,  weigh- 
ing probable  inconveniences  and  hardships  against  the  sacrifice 
of  just  and  essential  rights,  they  then  instructed  their  delegates 
to  withhold  the  assent  of  Maryland  to  the  Confederation  until 
an  article  or  articles  could  be  obtained  in  conformity  with  these 
views.' 

Against  this  proposition  the  state  of  Virginia,  which  had 
already  ratified  the  Articles  of  Confederation,  so  remonstrated 
that  there  appeared  to  be  no  prospect  of  reconciling  the  difficulty. 
At  this  juncture  the  state  of  New  York  came  forward,  and  by  an 
act  of  its  legislature,  passed  on  the  19th  of  February,  1780,  author- 
ized its  delegates  in  Congress  to  limit  the  western  boundaries  of 
the  stal  e,  and  ceded  a portion  of  its  public  lands  for  the  use  and 
benefit  of  such  of  the  United  States  as  should  become  members  of 
the  federal  alliance.  The  motives  upon  which  this  concession  was 
expressly  made  had  reference  to  the  formation  of  the  Union  by 
removing,  as  far  as  depended  upon  the  state  of  New  York,  the 
impediment  which  had  so  long  prevented  it.^ 

After  they  had  received  official  notice  of  this  act,  by  a report 
made  on  the  6th  of  September,  1780,  Congress  pressed  upon  the 
other  states,  similarly  situated,  the  policy  of  a liberal  surrender  of 


^ Secret  Journals,  I.  433. 


2 Ibid.,  440. 


THE  CONFEDERATION. 


93 


a i^ortion  of  their  territorial  claims,  as  they  could  not  be  preserved 
entire  Avithout  endangering  the  stability  of  the  general  confeder- 
acy ; reminding  them  how  indis])ensably  necessary  it  Avas  to  estab- 
lish tlie  Federal  Union  on  a fixed  and  permanent  basis,  and  on 
principles  acceptable  to  all  its  respective  members ; Iioav  essential 
it  was  to  public  credit  and  confidence,  to  the  support  of  the  army, 
to  the  vigor  of  the  national  councils,  to  tranquillity  at  home,  to 
reputation  abroad,  and  to  the  very  existence  of  the  people  of 
America  as  a free,  sovereign,  and  independent  people.  At  the 
same  time  they  earnestly  requested  the  legislature  of  the  state 
of  Maryland  to  accede  to  the  Confederation/ 

That  state  Avas  not  Avithout  examples  of  patriotic  confidence 
among  her  smaller  sister  states.  As  early  as  the  20th  of  Novem- 
ber, 1778,  Ncav  Jersey  had  led  the  Avay  to  a generous  trust  on  the 
part  of  the  states  which  still  remained  out  of  the  Union.  She 
declared  that  the  Articles  of  Confederation  Avere  in  divers  respects 
unequal  and  disadvantageous  to  her,  and  that  her  objections  Avere 
of  essential  moment  to  the  Avelfare  and  happiness  of  her  people ; 
yet,  convinced  of  the  present  necessity  of  acceding  to  the  confed- 
eracy proposed,  feeling  that  every  separate  and  detached  interest 
ought  to  be  postponed  to  the  general  good  of  the  Union,  and  firmly 
believing  that  the  candor  and  justice  of  the  several  states  would, 
in  due  time,  remove  the  inequality  of  Avhich  she  complained,  she 
authorized  her  delegates  to  accede  to  the  Confederation/ 

DelaAvare  folloAved  Avith  not  unequal  steps.  On  the  1st  of 
February,  1779,  she  declared  that,  although  she  Avas  justly  enti- 
tled to  a right,  in  common  Avith  the  other  members  of  the  Union, 
to  that  extensive  tract  of  country  lying  to  the  AA^estAvard  of  the 
frontiers  of  the  United  States,  gained  by  the  blood  and  treas- 
ure of  all,  and  therefore  proper  to  become  a common  estate,  to  be 
granted  out  on  terms  beneficial  to  all ; yet,  for  the  same  reasons, 
and  from  the  same  motiA^es  Avith  those  announced  by  New  Jersey, 
and  Avith  a like  faith  in  the  sense  of  justice  of  her  great  confeder- 
ates, she  ratified  the  Articles  of  Confederation/ 

These  examples  Avere  not  Avithout  influence  upon  the  councils 
of  patriotic  Maryland.  On  the  30th  of  January,  1781,  her  legis- 
lature passed  an  act,  the  preamble  of  which  commences  Avith  these 


^ Secret  Journals,  I.  442. 


2 Ibid.,  421. 


3 Ibid.,  424. 


\)4:  CONSTITUTIONAL  HISTORY. 

memorable  words  : Whereas  it  hath  been  said  that  the  common 

enemy  is  encouraged,  by  this  state  not  acceding  to  the  Confedera- 
tion, to  hope  tliat  the  union  of  the  sister  states  may  be  dissolved ; 
and  they  therefore  prosecute  the  war  in  expectation  of  an  event 
so  disgraceful  to  America ; and  our  friends  and  illustrious  ally  are 
impressed  with  an  idea  that  the  common  cause  would  be  promoted 
by  our  formally  acceding  to  the  Confederation : This  General  As- 
sembly, conscious  that  this  state  hath,  from  the  commencement 
of  the  war,  strenuously  exerted  herself  in  the  common  cause,  and 
fully  satisfied  that,  if  no  formal  confederation  were  to  take  place, 
it  is  the  fixed  determination  of  this  state  to  continue  her  exertions 
to  the  utmost,  agreeable  to  the  faith  pledged  in  the  Union ; — from 
an  earnest  desire  to  conciliate  the  affection  of  the  sister  states,  to 
convince  all  the  Avorld  of  our  unalterable  resolution  to  support  the 
independence  of  the  United  States,  and  the  alliance  with  his  most 
Christian  majest}^,  and  to  destroy  forever  any  apprehension  of  our 
friends,  or  hope  in  our  enemies,  of  this  state  being  again  united  to 
Great  Britain  ; — Be  it  enacted,”  etc.  The  act  then  proceeded  to 
adopt  and  ratify  the  Articles  of  Confederation,  relying  on  the 
justice  of  the  other  states  to  secure  the  interests  of  the  whole  in 
the  unoccupied  western  territory.' 

As  soon  as  this  act  of  Maryland  was  laid  before  Congress,  the 
joyful  news  was  announced  to  the  country  that  the  union  of  the 
states  was  consummated  under  the  written  instrument  which  had 
been  so  long  projected.  The  same  month  which  saw  the  comple- 
tion of  this  union  witnessed  a cession  by  Virginia  to  the  United 
States  of  all  her  claims  to  lands  northwest  of  the  river  Ohio ; but 
the  cession  was  not  finally  completed  and  accepted  until  the 
month  of  March,  1784.  This  vast  territory,  now  the  seat  of  pros- 
perous and  powerful  states,  came  into  the  possession  of  the  United 
States,  under  a provision  made  by  Congress,  that  such  lands  should 
be  disposed  of  for  the  common  benefit  of  the  United  States,  and 
should  be  settled  and  formed  into  distinct  republican  states,  to 
become  members  of  the  Federal  Union,  with  the  same  rights  of 
sovereignty,  freedom,  and  independence  as  the  other  states. 

The  historian  who  may,  in  any  generation,  record  these  noble 
acts  of  patriotism  and  concession,  should  pause  and  contemplate 


' Secret  Journals,  I.  445. 


THE  CONFEDERATION. 


95 


the  magnitude  of  the  event  with  wliich  they  were  connected.  He 
should  pause  to  render  honor  to  the  illustrious  deeds  of  that  great 
community  which  first  generously  withdrew  the  impediment  of  its 
territorial  claims,  and  to  the  no  less  gallant  confidence  of  those 
smaller  states  which  trusted  to  the  future  for  the  final  and  complete 
removal  of  the  inecpiality  of  which  they  complained.  He  should 
render  honor  to  the  state  of  New  York  for  the  surrender  of  a 
territory  to  Avhicli  she  believed  her  legal  title  to  be  complete ; a 
title  which  nothing  but  the  paramount  equity  of  the  claims  of  the 
whole  Confederacy  ought  to  have  overcome.  That  equity  she 
acknowledged.  She  threw  aside  her  charters  and  her  title-deeds ; 
she  ceased  to  use  the  language  of  royal  grants,  and  discarded  the 
])rinciple  of  succession.  She  came  forth  from  among  her  parch- 
ments into  the  forum  of  conscience,  in  presence  of  the  whole 
American  people ; and — recognizing  the  justice  of  their  claim  to 
territories  gained  by  their  common  efforts — to  secure  the  inesti- 
mable blessings  of  union,  for  their  good  and  for  her  own,  she  sub- 
mitted to  the  national  wdll  the  determination  of  her  western 
boundaries,  and  devoted  to  the  national  benefit  her  vast  claims  to 
unoccupied  territories. 

Equal  honor  should  be  rendered  to  l^ew  Jersey,  to  Delaware, 
and  to  Maryland.  The  two  former,  without  waiting  for  the  action 
of  a single  state  within  whose  reputed  limits  these  public  domains 
were  situate,  trusted  wholly  to  a future  sense  of  justice,  and  rati- 
fied the  union  in  the  confidence  that  justice  would  be  done.  The 
latter  waited ; but  only  until  she  saw  that  the  common  enemy 
was  encouraged,  and  that  friends  were  disheartened,  by  her  re- 
serve. Seeing  this,  she  hesitated  no  longer,  but  completed  the 
union  of  the  states  before  Virginia  had  made  the  cession  which 
afterwards  so  nobly  justified  the  confidence  that  had  been  placed 
in  her.'  _ 

The  student  of  American  constitutional  history,  therefore,  can^ 
not  fail  to  see  that  the  adoption  of  the  first  written  constitu- 
tion was  accomplished  through  great  and  magnanimous  sacrifices. 
The  very  foundations  of  the  structure  of  government  since  raised 


^ After  the  Confederation  had  thus  been  formed,  by  subsequent  cessions  of 
their  claims  by  the  other  states,  to  use  the  language  of  Mr.  Justice  Story,  “ this 
great  source  of  national  dissension  was  at  last  dried  up.” 


96 


CONSTITUTIONAL  HISTORY. 


rest  upon  splendid  concessions  for  the  common  weal,  made,  it  is 
true,  under  the  stern  pressure  of  war,  but  made  from  the  noblest 
motives  of  patriotism.  These  concessions  evince  the  progress 
which  the  people  of  the  United  States  were  then  making  towards 
both  a national  character  and  a national  feeling.  They  show  that, 
while  there  were  causes  which  tended  to  keep  the  states  apart 
— the  formation  of  state  constitutions,  the  conflicting  interests 
growing  out  of  the  inequalities  of  these  different  communities, 
and  the  previous  want  of  a national  legislative  power — there  were 
still  other  causes  at  work  which  tended  to  draw  together  the  ap- 
parently discordant  elements,  and  to  create  a union  in  which  should 
be  bound  together,  as  one  nation,  the  populations  which  had 
hitherto  known  only  institutions  of  a local  character.  The  time 
was  indeed  not  come  Avhen  these  latter  tendencies  could  entirely 
overcome  the  former.  It  was  not  until  the  trials  of  peace  had 
tested  the  strength  and  efficiency  of  a system  formed  under  the 
trials  of  war — when  another  and  a severer  conflict  between  na- 
tional and  local  interests  was  to  shake  the  republic  to  its  centre — 
that  a national  government  could  be  formed,  adequate  to  all  the 
exigencies  of  both.  Still,  the  year  1781  saw  the  establishment  of 
the  Confederation,  caused  by  the  necessities  of  military  defence 
against  an  invading  enemy.  But  it  was  accomplished  only 
through  the  sacrifice  of  great  claims ; and  the  fact  that  it  was 
accomplished,  and  that  it  led  the  way  to  our  present  Constitu- 
tion, proves  at  once  the  wisdom  and  the  patriotism  of  those 
who  labored  for  it. 

The  great  office  of  the  Confederation,  in  our  political  history, 
will  be  a proper  topic  for  consideration  after  the  analysis  of  its 
provisions.  But  we  should  not  omit  to  observe  here,  that,  when 
the  union  of  the  states  was  thus  secured,  the  motives  on  which  it 
was  formed,  and  the  concessions  by  which  it  was  accompanied 
and  followed,  created  a vast  obstacle  to  any  future  dissolution. 
The  immediate  object  of  each  state  was  to  obtain  its  own  inde- 
pendence of  the  crown  of  Great  Britain,  through  the  united,  and 
therefore  more  powerful,  action  of  all  the  states.  But,  in  order 
to  effect  such  a union,  that  immense  territory  over  which,  in  the 
language  of  Maryland,  ‘‘  free,  convenient,  and  independent  gov- 
ernments ” were  afterwards  to  be  formed,  was  to  be  ceded  in 
advance,  or  to  be  impliedly  promised  to  be  ceded,  to  the  use  and 


THE  CONFEDERATION. 


97 


benefit  of  the  whole  Confederacy.  A confederacy  of  states  whicli 
had  hecoine  possessed  of  such  a common  property  was  thus  hound 
together  hy  an  interest,  the  magnitude  and  force  of  which  cannot 
now  he  easily  estimated.  The  Union  might  incur  fresh  dangers 
of  dissolution  after  the  war  had  ceased ; its  frame  of  government 
and  its  legislative  power  might  prove  wholly  inadequate  to  the 
national  wants  in  time  of  peace ; the  public  faith  might  he  pros- 
trated and  the  national  arm  enfeebled  ; still,  while  the  Confeder- 
acy stood  as  the  great  trustee  of  property  large  enough  for  the 
accommodation  of  an  empire,  a security  existed  against  its  total 
destruction.  ~No  state  could  withdraw  from  the  Confederation 
without  forfeiting  its  interest  in  this  grand  public  domain ; and 
no  human  wisdom  could  devise  a satisfactory  distribution  of  prop- 
erty ceded  as  a common  fund  for  the  common  benefit  of  sovereign 
states  without  any  fixed  ratio  of  interest  in  the  respective  bene- 
ficiaries, and  without  any  clear  power  in  the  government  of  the 
Confederation  to  deal  with  the  trust  itself.' 


^ One  of  the  great  inducements  to  tlie  adoption  of  the  Constitution  of  the 
United  States  was  to  give  the  general  government  adequate  constitutional  power 
to  dispose  of  tlie  western  territory  and  to  form  new  states  out  of  it.  Congress, 
under  the  Confederation,  had  no  express  authority  to  do  this,  although  they 
proceeded  both  to  dispose  of  the  lands  and  to  erect  new  states,  by  the  Ordi- 
nance of  1787.  See  The  Federalist,  No.  38,  42,  43.  Story’s  Commentaries  on 
the  Constitution,  III.  184-190,  1st  edition.  Appendix  to  the  present  volume, 
Note  on  the  Ordinance  of  1787. 


CHAPTEE  YI. 

Natuke  and  Powers  of  the  Confederation. 

The  nature  of  the  government  established  by  the  Articles  of 
Confederation  can  be  understood  only  by  an  analysis  of  their  pro- 
visions. For  this  purpose  the  instrument  must  here  be  examined 
with  reference  to  three  principal  topics : first,  the  union  which  it 
established  between  the  different  members  of  the  Confederacy; 
second,  the  form  of  the  government  which  it  created  ; and  third, 
the  powers  which  it  conferred,  or  omitted  to  confer,  upon  that 
government. 

I.  The  parties  to  this  instrument  were  free,  sovereign,  and  in- 
dependent political  communities — each  possessing  within  itself  all 
the  powers  of  legislation  and  government,  over  its  own  citizens, 
wdiich  any  political  societv  can  possess.  Put,  by  this  instrument, 
these  several  states  became  united  together  for  certain  purposes. 
The  instrument  was  styled  Articles  of  Confederation  and  Perpet- 
ual Union  between  -the  States,”  and  the  political  body  thus  formed 
was  entitled  “The  United  States  of  America.”  The  articles  de- 
clared— as  would,  indeed,  be  implied,  in  such  circumstances,  with- 
out any  express  declaration- -that  each  state  retained  its  sover- 
eignty, freedom,  and  independence,  and  every  power,  jurisdiction, 
and  right  not  expressly  delegated  by  the  instrument  itself  to  the 
United  States  in  Congress  assembled.  The  nature  and  objects  of 
this  union  were  described  as  a firm  league  of  friendsliip  between 
the  states,  for  their  common  defence,  the  security  of  their  liber- 
ties, and  their  mutual  and  general  welfare  ; and  the  parties  bound 
themselves  to  assist  each  other  against  all  force  offered  to  or  at- 
tacks made  upon  them,  or  any  of  them,  on  account  of  religion, 
sovereignty,  trade,  or  under  any  pretence  whatever. 

It  was  also  provided  that  the  free  inhabitants  of  each  state 
should  be  entitled  to  all  the  privileges  of  free  citizens  in  the  sev- 


THE  CON  F E DERATION. 


90 


eral  states;'  tliat  tlierc  sliould  bo  an  open  intercourse  and  coin- 
nierce  between  tlie  ditierent  states;  that  fugitives  1‘roin  justice 
from  one  state  to  another  should  be  delivered  u]) ; and  that  full 
faith  and  credit  should  be  given  in  each  state  to  the  records,  acts, 
and  judicial  proceedings  of  every  other  state.'' 

II.  The  government  established  by  the  Articles  of  Confedera- 
tion consisted  of  a single  representative  body,  called  a General 
Congress.  In  this  body  were  vested  all  the  powers,  executive, 
legislative,  and  judicial,  granted  to  the  United  States.  The  mem- 
bers of  it  were  to  be  chosen  by  the  states,  in  such  manner  as  the 
legislature  of  each  state  might  determine ; no  state  to  be  repre- 
sented by  more  than  seven  delegates,  or  by  less  than  two.  No 
delegate  Avas  eligible  for  more  than  three  years  in  a period  of  six ; 
and  no  delegate  could  hold  any  office  of  emolument  under  the 
United  States.  Each  state  was  to  maintain  its  own  delegates, 
and  in  the  determination  of  questions  the  voting  AA^as  to  be  by 
states,  each  state  having  one  vote. 

III.  It  should  be  remembered  that  the  objects  and  purposes 
of  the  Confederation  related  chiefly  to  the  defence  of  the  states 
against  external  attacks ; and  it  Avas,  therefore,  as  it  purported  to 
be,  a league  for  mutual  defence  and  protection,  through  the  com- 
bined po Avers  of  the  Avhole,  operating  in  certain  forms  and  under 
certain  restrictions.  For  the  manner  in  Avhich  this  neAA^  authority 
Avas  to  be  exercised,- Ave  are  to  look  at  the  po  Avers  conferred  upon 
“ the  United  States  in  Congress  assembled.”  These  poAAm^s  re- 
lated to  external  and  to  internal  affairs. 

With  regard  to  the  external  relations  of  the  country.  Congress 
Avas  invested  Avith  the  sole  and  exclusive  right  of  determining  on 
peace  and  Avar,  unless  in  case  of  an  invasion  of  a state  by  enemies, 
or. an  imminent  danger  of  iuA^asion  by  Indiang ; of  sending  and 

1 That  is  to  say,  that  a citizen  of  any, state  iniglit  go  and  reside  in  any  other 
state,  and  be  there  entitled  to  all  the  privileges  of  a citizen  of  that  state. 

' 2 The  meaning  of  this  is,  that,  on  the  production  in  any  state  of  a law  passed 

or  of  a judgment  rendered  in  any  other  state,  properly  authenticated,  it  should 
be  admitted  that  such  a law  had  been  passed  or  such  a judgment  rendered  in 
• the  state  whose  act  it  purported  to  be,  and  that  all  the  legal  consequences  should 
follow. 


100 


CONSTITUTIONAL  HISTORY. 


receiving  ambassadors;  of  entering  into  treaties  and  alliances, 
under  the  limitation  that  no  treaty  of  commerce  could  be  made 
which  would  have  the  effect  to  restrain  the  legislature  of  any 
state  from  imposing  such  imposts  and  duties  on  foreigners  as 
their  own  people  were  subjected  to,  or  which  would  operate  to 
prohibit  the  ex])ortation  or  importation  of  any  commodity  what- 
ever. Congress  was  also  invested  with  power  to  deal  with  all 
captures  and  prizes  made  by  the  land  or  naval  forces  of  the  Uni- 
ted States  ; to  grant  letters  of  marque  and  reprisal  in  times  of 
peace : and  to  establish  courts  for  the  trial  of  piracies  and  felo- 
nies committed  on  the  high  seas,  and  for  determining  appeals  in 
cases  of  capture. 

With  regard  to  internal  affairs.  Congress  was  invested  with 
power  to  decide,  in  the  last  resort,  on  appeal,  all  disputes  between 
two  or  more  states  concerning  boundary,  jurisdiction,  or  any 
other  cause  ; and  also  all  controversies  concerning  land-titles, 
where  the  parties  claimed  under  different  grants  of  two  or  more 
states  before  the  settlement  of  their  jurisdiction  ; but  no  state 
was  to  be  deprived  of  territory  for  the  benefit  of  the  United  States. 
Congress  was  also  invested  with  the  sole  and  exclusive  right  and 
power  of  regulating  the  alloy  and  value  of  coin  struck  by  their 
authority,  or  by  that  of  any  of  the  United  States;  of  fixing  the 
standard  of  weights  and  measures  throughout  the  United  States ; 
of  regulating  the  trade  and  managing  all  affairs  with  the  Indians 
who  were  not  members  of  any  state,  provided  that  the  legislative 
authority  of  any  state,  within  its  own  limits,  should  not  be  in- 
fringed or  violated ; of  establishing  and  regulating  post-offices  from 
one  state  to  another,  and  exacting  postage  to  defray  the  expenses ; 
of  appointing  all  officers  of  the  land  forces  in  the  service  of  the 
United  States,  and  of  making  rules  for  the  government  and  regula- 
tion of  the  land  and  naval  forces,  and  directing  their  operations. 

Congress  was  also  invested  with  power  to  appoint  a commit- 
tee of  the  States,’’  to  sit  in  the  recess  of  Congress,  to  consist  of 
one  delegate  from  each  state,  and  other  committees  and  civil  of- 
ficers, to  manage  the  general  affairs  under  their  direction ; to  ap- 
point one  of  their  number  to  preside,  but  authorizing  no  person  to 
serve  in  the  office  of  president  more  than  one  year  in  a term  of 
three  years  ; to  ascertain  and  appropriate  the  necessary  sums  for 
the  public  service  ; to  borrow  money  and  emit  bills  on  the  credit 


THE  CONFEDERATION. 


101 


of  the  United  States;  to  build  and  equip  a navy;  and  to  agree 
upon  the  number  of  land  forces,  and  make  requisitions  upon 
each  state  for  its  (]uota,  in  proportion  to  the  numbers  of  white 
inhabitants  in  such  state.  The  legislature  of  each  state  was  to 
a])point  the  regimental  officers,  enlist  the  men,  and  clothe,  arm, 
and  equip  them  at  the  expense  of  the  United  States. 

Such  were  the  powers  conferred  upon  Congress  by  the  Articles 
of  Confederation.  But  the  restrictions  imposed,  in  the  same  in- 
strument, greatly  qualified  and  weakened,  and  in  fact  almost  ren- 
dered nugatory,  the  greater  part  of  them.  It  was  expressly  pro- 
vided that  Congress  should  never  engage  in  a war ; nor  grant 
letters  of  marque  or  reprisal  in  time  of  peace  ; nor  enter  into  any^- 
treaties  or  alliances  ; nor  coin  money  or  regulate  its  value ; nor 
ascertain  the  sums  of  money  necessary  for  the  public  purposes  ; 
nor  emit  bills  ; nor  borrow  money  on  the  credit  of  the  United 
States ; nor  appropriate  money ; nor  agree  upon  the  number  of 
vessels  for  the  navy,  or  the  number  of  land  or  sea  forces  to  be 
raised  ; nor  appoint  a commander-in-chief  of  the  army  or  navy — 
unless  nine  states  should  assent  to  the  same.  The  committee  of 
the  states  authorized  to  sit  during  the  recess  of  Congress  could 
not  do  any  of  these  things,  for  the  assent  of  nine  states  could 
not  be  delegated. 

The  revenues  of  the  country  were  left  by  the  Articles  of  Con- 
federation wholly  in  the  control  of  the  separate  states.  It  was 
provided  that  all  charges  of  war,  and  all  other  expenses  for  the 
common  defence  or  general  welfare,  should  be  defrayed  out  of  a 
common  treasury ; but\his  treasury  was  to  be  supplied,  not  by 


taxes,  duties,  or  imposts  / ievied  by  or  under  the  a 
gress,  but  by  taxes  to  be  Imd  and  levied  by  the  le 
several  states,  within  such  time  ^as  might  be  : 

jach  state  was  i 
Limits  granted  oi^ 


The  amount  to  be  furnished  by 
the  value  of  the  land  within  its 


lority  of  Con- 
latures  of  the 
by  Congress, 
proportion  to 
si/rveyed,  and 


the  buildings  and  improvements  thereon,  to  be  estimated  accord- 


neans,  there-’ 
pplying  the 
was  wanted. 


ing  to  the  mode  prescribed  by  Congress.  The  sole 
fore,  which  the  Confederation  gaveX^o  Congress  of 
treasury  of  the  United  States,  was  to  Vote  what  sum 
and  to  call  upon  the  legislature  of  each  state  to  pj  ^y  in  its  pro- 
portion within  a given  time.  The  commerce  of  the\  country  was 
left  entirely  within  the  control  of  the  state  legislatu^s  ; render- 


102 


CONSTITUTIONAL  HISTORY. 


ing  it  the  commerce  of  thirteen  different  states,  each  of  which  could 
levy  wliat  duties  it  saw  fit  upon  all  exports  and  imports,  provided 
tliey  did  not  interfere  with  any  treaties  then  proposed,  or  touch 
tlie  ])roperty  of  the  United  States  or  that  of  any  other  state. 
The  United  States  had  no  power  of  taxation,  direct  or  indirect. 

The  Articles  of  Confederation  were  also  entirely  without  any 
])rovision  for  enforcing  the  measures  which  they  authorized  Con- 
gress to  adopt  for  the  general  welfare  of  the  Union.  It  was  de- 
clared in  the  instrument  that  every  state  should  abide  by  the 
determinations  of  Congress  on  all  the  questions  over  which  the 
instrument  gave  that  body  control ; that  the  articles  should  be 
inviolably  observed  by  every  state  ; that  the  union  should  be 
perpetual ; and  that  no  alterations  should  be  made  in  any  of  the 
articles  unless  agreed  to  by  Congress,  and  confirmed  by  the  leg- 
islature of  every  state.  But  these  declarations,  however  strong 
and  emphatic  in  their  terms,  only  made  the  Confederation  in  fact, 
as  in  name,  a league  or  compact  between  sovereign  states  ; for 
it  gave  the  government  of  the  union  no  power  to  enforce  its  own 
measures  or  laws  by  process  upon  the  persons  of  individuals,  and 
consequently  any  party  to  the  instrument  could  infringe  any  or  all 
of  its  provisions,  without  any  other  consequence  than  a resort  to 
arms  by  the  general  Confederacy,  which  would  have  been  civil  war. 

These,  with  some  restrictions  upon  the  power  of  the  states  in 
regard  to  the  making  of  treaties,  engaging  in  war,  sending  am- 
bassadors, and  some  other  topics,  were  the  main  provisions  of  the 
Articles  of  Confederation ; and  under  the  government  thus  consti- 
tuted, the  United  States,  on  the  second  day  of  March,  1781,  entered 
upon  a new  era  of  civil  polity,  and  commenced  a new  existence, 
under  somewhat  happier  auspices  than  they  had  known  before. 

It  will  be  seen,  in  the  further  development  of  the  period  which 
followed  the  establishment  of  this  confederation,  down  to  the 
calling  of  the  convention  which  framed  the  Constitution,  that 
what  I have  called  the  great  office  of  the  Confederation  in  our 
political  system  was  indeed  a function  of  vast  importance  to  the 
happiness  of  the  American  people,  but,  at  the  same  time,  was  one 
that  was  necessarily  soon  fulfilled,  to  be  followed  by  a more  per- 
fect organization  for  the  accomplishment  of  the  objects  and  the 
satisfaction  of  the  wants  winch  it  brought  in  its  train.  This  office 
of  the  Confederation  was,  to  demonstrate  to  the  people  of  the 


THE  CONFEDEKATIOK 


103 


Americjiii  States  tlie  ])racticability  and  necessity  of  a more  per- 
fect union.  The  Confederation  showed  to  the  people  of  these 
separate  communities  that  there  were  certain  great  ])urj)oses  of 
civd  government  Avhich  they  could  not  discharge  by  their  sepa- 
rate means  ; that  independence  of  the  crown  of  Great  Britain 
could  not  be  achieved  by  any  one  of  them,  unassisted  by  all  the 
rest ; that  no  one  of  them,  however  respectable  in  population  or 
resources,  could  be  received  and  dealt  with,  by  the  governments 
of  the  world,  as  a nation  among  nations;  but  that,  by  union 
among  themselves,  by  some  political  tie  which  should  combine 
all  their  resources  in  the  hands  of  one  directing  power,  and  make 
them,  in  some  practical  sense,  one  people,  it  was  possible  for  them 
to  achieve  their  independence  and  take  a place  among  the  na^ 
tions.  The  Confederation  made  it  manifest  that  these  conse- 
quences could  be  secured.  It  did  not,  indeed,  answer  all  the 
purposes,  or  accomplish  all  the  objects,  which  had  been  designed 
or  hoped  from  it : it  was  defective  as  a means  ; but  it  taught  the 
existence  of  an  end,  and  demonstrated  the  possibility  of  reaching 
that  end,  by  showing  that  in  some  form,  and  for  some  purposes, 
a union  of  the  states  was  both  possible  and  necessary.  It  thus 
made  the  permanent  idea  of  union  familiar  to  the  people  of  the 
different  states.  It  did  more  than  this.  It  created  a larger  field 
for  statesmanship  by  creating  larger  interests,  to  be  managed  by 
that  higher  order  of  men  who  could  rise  above  local  concerns 
and  sectional  objects  and  embrace  within  the  scope  of  their  vis- 
ion the  happiness  and  welfare  of  a continent.  It  introduced  to 
men’s  minds  the  great  ideas  of  national  power  and  national  sov- 
ereignty, as  the  agencies  that  were  to  work  out  the  difficult  re- 
sults which  no  local  power  could  accomplish  ; and,  although  these 
ideas  were  at  first  vague  and  indefinite,  and  made  but  a slow  and 
difficult  progress  against  influences  and  prejudices  of  a narrower 
kind,  they  were  planted  in  the  thoughts  of  men,  to  ripen  into  ma- 
turity and  strength  in  the  progress  of  future  years.’ 

1 The  armorial  bearings  of  the  United  States  ’were  adopted  on  tlie  20th  of 
June,  1782.  Journals,  YII.  395.  Tlie  origin  of  the  American  flag  has  been  -uTit- 
ten  by  Commodore  George  H.  Preble,  xilbany,  S.  Munsell,  1872. 


CHAPTEE  YII. 

1781-1783. 

Eequisitions. — Claims  of  the  ApwMy. — ISTewburgh  Addresses. — 
Peace  Proclaimed. — The  Army  Disbanded. 

The  interval  of  time  which  extends  from  the  adoption  of  the 
Articles  of  Confederation  to  the  initiatory  steps  for  the  forma- 
tion of  the  Constitution  must  be  divided  into  two  periods : that 
which  preceded  and  that  which  followed  the  peace  of  1783 ; in 
both  of  which  the  defects  of  the  Confederation  were  rapidly  de- 
veloped, and  in  both  of  which  efforts  were  made  to  supply  those 
defects  by  an  enlargement  of  the  powers  of  Congress.  The 
reader’s  attention,  however,  will  now  be  confined  to  the  first  of 
these  periods. 

Congress  assembled,  under  the  Confederation,  on  the  2d  of 
March,  1781,  and  the  Treaty  of  Peace,  which  put  an  end  to  the 
war  and  admitted  the  independence  of  the  United  States,  was 
definitively  signed  on  the  3d  of  September,  1783,  and  was  ratified 
and  proclaimed  by  Congress  on  the  Idth  of  January,  1784. 

Notwithstanding  the  solemn  engagements  into  which  the 
states  had  entered  with  each  other,  under  the  Articles  of  Con- 
federation, the  prospect  of  bringing  the  war  to  a close,  through  a 
compliance  with  those  obligations,  was  exceedingly  faint  at  the 
commencement  of  the  campaign  of  1782.  The  United  States  had 
made  a treaty  of  alliance  with  the  King  of  France  in  1778 and 
in  pursuance  of  that  treaty,  six  thousand  French  troops  arrived 
at  Newport  in  July,  1780,  and  in  the  spring  of  1781  joined  the 
American  army  near  New  York.  The  presence  in  the  country  of 
a foreign  force,  sent  hither  by  the  ancient  rival  of  England,  to 

' The  treaty  was  concluded  at  Paris,  February  6,  1778,  and  was  ratified  by 
Congress  on  the  5th  of  May.  Journals,  IV.  25G,  257. 


THE  CONFEDERATION. 


105 


assist  the  people  of  the  United  States  in  tlieir  contest  for  inde- 
pendence, encouraged  an  undue  reliance  upon  external  aid.  Many 
of  the  States  became  cul})ably  remiss  in  complying  with  the 
requisitions  of  Congress;  and,  although  they  had  so  recently 
authorized  Congress  to  make  requisitions,  both  for  men  and 
money,  and  had  provided  the  forin  in  which  they  Avere  to  be 
made,  the  adoption  of  the  Articles  of  Confederation  had  very  lit- 
tle tendency  to  render  the  states  prompt  to  discharge  the  obli- 
gations Avhich  they  imposed.  In  October  and  NoA^ember,  1781, 
Congress  called  upon  th^  states  to  raise  their  several  quotas  of 
eight  millions  of  dollars,  for  the  use  of  the  United  States,  and 
recommended  to  them  to  lay  taxes  for  raising  these  quotas  sepa- 
rate from  those  laid  for  their  OAvn  particular  use,  and  to  pass  acts 
directing  the  collectors  of  the  taxes  intended  for  the  use  of  the 
United  States  to  pay  the  same  directly  into  the  treasury  of  the 
Union.*  In  December  of  the  same  year.  Congress  also  called 
upon  the  states,  Avith  great  urgency,  to  complete  their  quotas  of 
troops  for  the  next  campaign.^ 

The  aid  of  Washington  Avas  invoked  to  influence  the  action 
of  the  states  upon  these  requisitions.  On  the  22d  of  January, 
1782,  he  addressed  a circular  letter  to  the  governors  of  the  states, 
to  be  laid  before  their  respective  legislatures,  on  the  subject  of 
finance ; reminding  them  hoAv  the  Avhole  army  had  been  throAvn 
into  a ferment  tAveUe  months  before  for  the  Avant  of  pay  and  a 
regular  supply  of  clothing  and  provisions ; Avarning  them  that 
the  recent  successes  in  Virginia,  by  the  capture  of  Lord  Corn- 
Avallis’s  army,  might  liaA^e  a fatal  tendency  to  cool  the  ardor  of 
the  country  in  the  prosecution  of  the  Avar ; assuring  them  that  a 
vigorous  prosecution  of  that  AA^ar  could  alone  secure  the  independ- 
ence of  the  United  States ; and  urging  them  to  adopt  such  meas- 
ures as  Avould  insure  the  prompt  payment  of  the  sums  AAdiich  Con- 
gress had  called  for."  A feAV  days  afterAvards  he  addressed  a 
similar  letter  to  the  states,  on  the  subject  of  completing  their 
quotas  of  troops,  in  Avhich  he  told  them  that  the  continuance  or 
termination  of  the  Avar  noAV  rested  on  their  Augor  and  decision ; 


* Resolves  of  October  30  and  November  2,  1781.  Journals,  VII.  1G7,  169. 
® Resolves  of  December  10,  1781.  Journals,  VII.  190. 

* Writings,  VIII.  226. 


106 


CONSTITUTIONAL  HISTORY. 


ami  that,  even  if  the  enemy  \vere,  in  consequence  of  their  late 
reverses,  disposed  to  treat,  nothing  but  a decidedly  superior  force 
could  enable  us  boldly  to  claim  our  rights  and  dictate  the  terms 
of  pacification.  ‘‘And  soon,”  he  said,  “might  that  day  arrive, 
and  we  might  hope  to  enjoy  all  the  blessings  of  ])eace,  if  we  could 
see  again  the  same  animation  in  the  cause  of  our  country  inspir- 
ing every  breast,  the  same  passion  for  freedom  and  military  glory 
impelling  our  youths  to  the  field,  and  the  same  disinterested 
patriotism  pervading  every  rank  of  men,  that  was  conspicuous  at 
the  commencement  of  this  glorious  revolution ; and  I am  per- 
suaded that  only  some  great  occasion  was  wanting,  such  as  the 
present  moment  exhibits,  to  rekindle  tlie  latent  sparks  of  that 
patriotic  fire  into  a generous  flame,  to  rouse  again  the  unconquer- 
able spirit  of  liberty,  which  has  sometimes  seemed  to  slumber  for 
a Avhile,  into  the  full  vigor  of  action.”  ' 

JN'ot withstanding  these  urgent  appeals,  the  spring  of  1782 
arrived,  and  the  summer  passed  away,  without  any  substantial 
compliance  by  the  states  with  the  requisitions  of  Congress  for 
either  men  or  money.  When  Washington  arrived  in  camp,  in 
May,  to  commence  the  campaign  that  was  to  extort  from  the 
British  government — now  in  the  hands  of  a new  ministry,  sup- 
posed to  be  more  favorable  to  peace — the  terms  which  he  hoped 
might  be  procured,  there  were  less  than  ten  thousand  men  in  the 
Northern  army;  and  their  numbers  were  not  much  increased 
during  the  summer."  Great  and  dangerous  discontents  now  ex- 
isted in  the  army,  both  among  otficers  and  soldiers,  concerning 
the  arrearages  of  pay ; for,  as  the  prospects  of  peace  became 
brighter,  it  seemed  to  become  more  and  more  probable  that  the 
army  would  ultimately  be  disbanded  without  adequate  provision 
for  its  claims,  and  that  officers  and  men  would  be  thrown  penni- 
less upon  the  world,  unpaid  by  the  country  whose  independence 
they  had  achieved. 

At  this  period  there  occurred  the  famous  proceedings  of  the 
officers,  called  the  Newburgh  Addresses,  on  the  subject  of  half- 
pay ; and  since  the  claims  of  the  officers  and  soldiers,  as  public 
creditors  of  the  United  States,  are  intimately  connected  with  the 


’ Writings,  YIII.  232,  235.  ^ S2)arks’s  Life  of  Wasliington,  p.  380. 


I 


THE  CONFEDERATION. 


107 


constitutional  history  of  the  country,  it  is  needful  to  give  here  a 
brief  account  of  them. 

The  pay  of  the  othcers  in  the  Revolutionary  army  was  origi- 
nallv  established  upon  so  low  a scale  that  men  with  families  de- 
pendent u])on  them  could  feel  little  inducement  to  remain  long  in 
a service  the  close  of  which  was  to  be  rewarded  only  with  a 
])atent  for  a few  hundred  acres  of  land  in  some  part  of  the  west- 
ern wilderness.  In  the  year  1778  it  had  become  apparent  to 
AVashington  that  something  must  be  done  to  avert  the  con- 
sequences of  the  mistaken  policy  on  which  Congress  had  acted 
with  reference  to  the  army;  and  while  at  Yalley  Forge — that 
scene  of  dreadful  suffering  by  the  army— he  wrote  on  this  sub- 
ject to  the  President  of  Congress  the  first  of  a series  of  most  able 
and  instructive  letters,  which  extend  through  the  five  following 
years.' 

On  the  17th  of  April,  after  this  first  letter  had  been  laid  be- 
fore Congress,  a resolution  was  moved  that  an  establishment  of 
half -pay  be  made  for  officers  who  should  serve  during  the  war,  to 
begin  after  its  conclusion."  Four  days  afterwards  the  sense  of  the 
house  was  taken  on  the  question  whether  there  should  be  any  pro- 
vision made  for  the  officers  after  the  conclusion  of  the  war,  and 
the  affirmative  was  carried  by  the  votes  of  eight  states  against 
four."  On  the  26th  of  April  a proposition  that  half-pay  be  grant- 
ed for  life,  to  commence  at  the  close  of  the  war,  passed  by  a ma- 
jority of  one  state ; six  states  voting  in  the  affirmative,  five  in 
the  negative,  and  one  being  divided."  The  next  day  the  value  of 
this  vote  was  destroyed  by  a resolution  which  provided  that  the 
United  States  should  have  the  right  to  redeem  the  half -pay  for 
life  by  giving  to  the  officer  entitled  six  years’  half -pay and  on 
the  15th  of  May  Congress  substituted  for  the  whole  scheme  a pro- 

* Letter  of  April  10,  1778.  Writings  of  Washington,  V.  312. 

^ Journals,  IV.  221. 

^ Ibid.  228,  229.  The  states  which  voted  in  the  negative  were  Rhode  Island, 
Connecticut,  New  Jersey,  and  South  Carolina. 

^ Ibid.  243.  The  states  voting  in  the  negative  were  Massachusetts,  Rhode 
Island,  Connecticut,  New  Jersey,  and  South  Carolina.  The  state  whose  vote 
was  divided  was  Pennsylvania. 

^ Ibid.  244.  Under  tins  resolve,  each  officer  was  entitled  to  receive  half-pay 
annuall}’,  for  the  term  of  seven  years  after  the  conclusion  of  war,  if  living. 


108  CONSTITUTIONAL  HISTORY. 

vision  of  half-pay  for  seven  years,  taking  away  the  option  of  half- 
pay for  life.' 

This  miserable  and  vacillating  legislation  shows  the  unpopu- 
larity of  the  scheme  of  such  an  establishment,  although  demanded 
alike  by  considerations  of  justice  and  policy."  The  spirit  which, 
for  a time,  actuated  a part  of  the  people  of  this  country  towards 
the  men  who  were  suffering  so  much  in  the  cause  of  national 
independence  evinces  an  extreme  jealousy  for  the  abstract  prin- 
ciples of  civil  liberty,  unmitigated  by  the  generous  virtues  of 
justice  and  gratitude.  This  spirit  was  duly  represented  in  Con- 
gress. The  main  arguments  employed  out  of  doors  were,  that  pen- 
sions were  contrary  to  the  maxims  and  spirit  of  our  institutions ; 
that  to  grant  half-pay  for  life  to  the  officers  was  establishing  a 
privileged  class  of  men  who  were  to  live  upon  the  public  for  the  rest 
of  their  days ; and  that  the  officers  entered  the  service  on  the  pay 
and  inducements  originally  offered,  without  any  promise  or  pros- 
pect of  such  a reward.  This  kind  of  impracticable  adherence  to  a 
principle,  working  in  this  instance  the  greatest  injustice  and  lead- 
ing ultimately  to  a breach  of  public  faith,  was  the  principal  cause 
that  prolonged  the  war,  and  made  it  cost  so  much  suffering,  so 
much  blood,  and  so  much  treasure.  The  people  of  the  United 
States  adhered  so  tenaciously  to  the  principles  and  axioms  of  free- 
dom, that,  even  when  they  had  undertaken  a w^ar  for  their  own 
security  and  independence  against  a foreign  foe,  they  would  not 
establish  a government  with  the  power  of  direct  taxation,  or  or- 
ganize an  army  with  suitable  rewards  for  service.  The  want  of 
such  a power  in  their  government  led  to  the  enormous  emissions 
of  paper  money,  which  brought  with  them  a long  train  of.  suffer- 
ings and  disasters,  ending  at  last  in  national  bankruptcy.  The 
want  of  justice  to  the  army  placed  the  civil  liberty  of  the  country 
in  imminent  danger,  and  finally  led  to  the  oppression  of  men 
whose  valor,  had  first  won,  and  whose  patriotism  then  saved  it 
from  destruction. 

In  the  six  months  which  followed  the  vote  of  the  15th  of  May, 

’ Journals,  IV.  288. 

2 On  the  21st  of  April,  in  the  resolution  reported  by  a committee,  the  words 
'‘an  establishment  of  lialf-pay  for  life”  were,  on  motion,  changed  to  “a  pro- 
vision of  half-pay;”  an  amendment  which  reveals  very  plainly  the  character  of 
the  popular  objections.  Journals,  IV.  228. 


I 


THE  CONFEDERATION. 


109 


177S,  the  ])rovision  which  it  luul  made  was  found  to  be  wholly 
inadequate,  aiunVashingtoii,  then  at  Philadelphia,  again  earnestly 
pressed  the  subject  upon  the  attention  of  Congress.  On  the  llth 
of  August,  1779,  a report  from  a committee  on  this  subject  being 
under  consideration,  a motion  was  made  to  amend  it,  by  inserting 
a provision  that  the  half-pay  granted  by  the  resolve  of  the  15tli 
of  May,  1778,  be  extended  so  as  to  continue  for  life ; and  this  mo- 
tion was  carried  by  a vote  of  eight  states  against  four.*  On  the 
1 7th  Congress  resolved  that  the  consideration  of  that  part  of  the 
re])ort  for  extending  the  half-pay  be  postponed,  and  that  it  be 
recommended  to  the  several  states  that  had  not  already  adopted 
measures  for  that  purpose  to  make  such  further  provision  for  the 
officers  and  soldiers  enlisted  for  the  war,  who  should  continue  in 
service  till  the  establishment  of  peace,  as  w^ould  be  an  adequate 
compensation  for  their  dangers,  losses,  and  hardships,  either  by 
granting  to  the  officers  half-pay  for  life  and  proper  rewards  to 
the  soldiers,  or  in  such  other  manner  as  might  appear  most  expe- 
dient to  the  legislatures  of  the  several  states.' 

Before  the  passage  of  this  resolve  the  state  of  Pennsylvania 
had  placed  her  officers  upon  an  establishment  of  half-pay  for  life, 
and  with  the  happiest  consequences.  But  no  other  state  followed 
her  example;  and  in  the  autumn  of  1780  it  became  necessary  for 
Washington  to  apply  to  Congress  again."  At  length,  in  conse- 
quence of  his  earnest  and  repeated  appeals,  a resolve  was  passed, 
on  the  21st  of  October,  that  the  officers  who  should  continue  in 
service  to  the  end  of  the  war  should  be  entitled  to  half-pay  during 
life,  to  commence  from  the  time  of  their  reduction." 

From  this  time,  therefore,  the  officers  of  the  army  continued 
in  the  service,  relying  upon  the  faith  of  the  country,  as  expressed 
in  the  vote  of  the  21st  of  October,  1780,  and  believing,  until  they 
saw  proof  to  the  contrar}^  that  the  public  faith  thus  pledged  to 
them  would  be  observed."  But  they  were  destined  to  a severe 
disappointment ; and  one  of  the  causes  of  that  disappointment 
was  the  adoption  of  the  Articles  of  Confederation.  The  very 


> Journals,  V.  312.  a Ibid.  316,  317. 

3 Writings  of  Wasliington,  VII.  165,  246.  Journals,  VI.  336. 

^ See  General  Washington’s  letter  to  General  Sullivan  (in  Congress^,  Novem- 
ber 20,  1780.  Writings,  VII.  297. 


110 


CONSTITUTIONAL  HISTORY. 


change  in  the  constitutional  position  of  the  country,  from  which 
the  most  happy  results  were  anticipated,  and  which  undoubtedly 
cemented  the  Union,  became  the  means  by  which  they  were 
cheated  of  their  hopes.  The  Congress  of  1780,  which  had  pledged 
to  them  a half-pay  for  life,  was  the  Revolutionary  Congress;  but 
the  Congress  which  was  to  redeem  this  pledge  was  the  Congress 
of  the  Confederation,  which  required  a vote  of  nine  states  for  an 
appropriation  of  money,  or  a call  upon  the  states  for  their  propor- 
tions. When  the  vote  granting  the  half -pay  for  life  was  passed 
there  were  less  than  nine  states  in  favor  of  the  measure ; and  after 
the  Confederation  was  established  the  delegates  of  the  states 
Avhich  originally  opposed  the  provision  could  not  be  brought  to 
consider  it  in  its  true  light — that  of  a compact  with  the  officers. 
It  was  even  contended  that  the  vote,  having  passed  before  the 
Confederation  was  signed  and  acted  upon,  was  not  obligatory 
upon  the  Congress  under  the  Confederation,  as  that  instrument 
required  the  votes  of  nine  states  for  an  appropriation  of  money. 
In  this  manner  men  deluded  themselves  with  the  notion  that  a 
change  in  the  form  of  a government,  or  in  the  constitutional 
method  of  raising  money  to  discharge  the  obligations  of  a con- 
tract, can  dissolve  those  obligations,  or  alter  the  principles  of  jus- 
tice on  which  they  depend.  The  states  in  the  opposition  to  the 
measure  refused  to  be  coerced,  as  they  were  pleased  to  consider 
it,  and  in  the  autumn  of  1782  the  officers  became  convinced  that 
they  had  nothing  to  hope  for  from  Congress  but  a reference  of 
their  claims  to  their  several  states.' 

In  November,  1782,  preliminary  and  eventual  articles  of  peace 
Avere  agreed  upon  between  the  United  States  and  Great  Britain, 
by  their  plenipotentiaries.  Nothing  had  been  done  by  Congress 
for  the  claims  of  the  army,  and  it  seemed  highly  probable  that  it 
Avould  be  disbanded  without  even  a settlement  of  the  accounts  of 
the  officers,  and,  if  so,  that  they  Avould  never  receive  their  dues. 
Alarmed  and  irritated  by  the  neglect  of  Congress ; destitute  of 
money  and  credit  and  of  the  means  of  living  from  day  to  day ; 
oppressed  with  debts  ; saddened  by  the  distresses  of  their  families 
at  home  and  by  the  prospect  of  misery  before  them — they  pre- 


^ See  the  letter  of  General  Lincoln,  Secretary  at  War,  to  Washington,  cited  by 
Mr.  Sparks,  VIII.  356. 


THE  CONFEDE RATIO K 


111 


sented  a memorial  to  Congress  in  December,  in  which  they  ui’ged 
the  immediate  adjustment  of  their  dues,  and  offered  to  commute 
the  half-pay  for  life,  granted  by  the  resolve  of  October,  ITSO,  for 
full  ])ay  for  a certain  number  of  years,  or  for  such  a sum  in  gross 
as  should  be  agreed  on  by  their  committee  sent  to  Philadelphia 
to  attend  the  progress  of  the  memorial  through  the  house.  It  is 
manifest  from  statements  in  this  document,  as  well  as  from  other 
evidence,  that  the  officers  were  nearly  driven  to  desperation,  and 
that  their  offer  of  commutation  was  wrung  from  them  by  a state 
of  public  opinion  little  creditable  to  the  country.  They  recited 
their  hardships,  their  poverty,  and  their  exertions  in  the  cause; 
and  all  that  they  said  was  fully  borne  out  by  their  great  com- 
mander, in  his  personal  remonstrances  with  many  of  the  members 
of  Congress.  The  officers  asserted  that  many  of  their  brethren 
who  liad  retired  on  the  half-pay  promised  by  the  resolve  of  1780 
Avere  not  only  destitute  of  any  effectual  provision,  but  had  become 
objects  of  obloquy ; and  they  referred  Avith  chagrin  to  the  odious 
Anew  in  Avhich  the  citizens  of  too  many  of  the  states  endeavored 
to  place  those  avIio  Avere  entitled  to  that  provision. 

But,  from  the  prevailing  feeling  in  Congress  and  in  the  coun- 
try, nothing  better  AA^as  to  be  expected  than  a compromise  in  place 
of  the  discharge  of  a solemn  obligation ; and  this  feeling  no  ilmer- 
ican  historian  should  fail  to  record  and  to  condemn.  If  these  men 
had  borne  only  the  character  of  public  creditors,  a state  of  public 
feeling  Avhich  drove  them  into  a compromise  of  their  claims  ought 
ahvays  to  be  severely  reprehended.  But,  beyond  the  capacity  of 
public  creditors,  they  Avere  the  men  Avho  had  fought  the  battles 
Avhich  liberated  the  country  from  a foreign  yoke ; who  had  en- 
dured every  extremity  of  hardship,  e\"ery  form  of  suffering,  Avhich 
the  life  of  a soldier  knovvs  ; Avho  had  stood  between  the  common 
soldiery  and  the  civil  power ; and  often,  at  the  hazard  of  their 
liA^es,  preserved  that  discipline  and  subordination  Avhich  the  civil 
poAver  had  done  too  much  to  hazard."  They  were,  in  a AAwd,  the 
men  of  whom  their  commander  said  that  they  had  exhibited 
more  virtue,  fortitude,  self-denial,  and  perseverance  than  had  per- 
haps been  then  paralleled  in  the  history  of  human  enthusiasm. 

Painful,  therefore,  as  it  is,  this  lesson,  of  the  Avrong  that  may 
be  done  by  a breach  of  public  faith,  must  be  read.  It  lies  open 
on  the  page  of  history,  and  is  the  case  of  those  to  Avhose  right 


112 


CONSTITUTIONAL  HISTORY. 


arms  the  people  of  this  country  owe  the  splendid  inheritance  of 
liberty.  All  real  palliations  should  be  sought  for  and  admitted. 
The  country  was  poor : no  proper  system  of  finance  had  been,  or 
could  be,  developed  by  a government  which  had  no  power  of  tax- 
ation ; and  the  ideas  and  feelings  of  the  people  of  many  of  the 
states  were  provincial,  and  without  the  liberality  and  enlargement 
of  thought  which  comes  of  intercourse  with  the  world.  But,  after 
every  apology  has  exhausted  its  force,  the  conscientious  student 
of  history  must  mark  the  dereliction  from  public  duty ; must  ad- 
mit what  the  public  faith  required ; and  must  observe  the  danger- 
ous consequences  which  attend,  and  must  ever  attend,  the  breach 
of  a public  obligation. 

The  immediate  consequences  which  followed,  in  this  instance, 
were  predicted  by  Washington,  who  gave  the  clearest  warning,  in 
advance  of  the  officers’  memorial,  of  the  hazards  that  would  at- 
tend the  further  neglect  of  their  claims.  But  his  Avarning  seems 
to  have  been  unheeded,  or  to  have  made  but  little  impression 
against  the  prevailing  aversion  to  touch  the  unpopular  subject  of 
half-pay.  The  committee  of  the  officers  were  in  attendance  upon 
Congress  during  the  whole  winter,  and  early  in  March,  1783,  they 
AATOte  to  their  constituents  that  nothing  had  been  done. 

At  this  moment  the  predicament  in  Avhich  Washington  stood, 
in  the  double  relation  of  citizen  and  soldier,  Avas  critical  and  deli- 
cate in  the  extreme.  In  the  course  of  a few  days  all  his  firmness 
and  patriotism,  all  his  sympathies  as  an  officer,  on  the  one  side, 
and  his  fidelity  to  the  government  on  the  other,  AAmre  severely 
. tried.  On  the  10th  of  March  an  anonymous  address  Avas  circu- 
lated among  the  officers  at  Newburgh,  calling  a meeting  of  the 
general  and  field  officers,  and  of  one  officer  from  each  company, 
and  one  from  the  medical  staff,  to  consider  the  late  letter  from 
their  representatives  at  Philadelphia,  and  to  determine  Avhat  meas- 
ures should  be  adopted  to  obtain  that  redress  of  grievances  Avhich 
they  seemed  to  have  solicited  in  vain.  It  Avas  Avritten  Avith  great 
ability  and  skill.'  It  spoke  the  language  of  injured  feeling;  it 


1 The  “Newburgh  Addresses”  were  written  by  John  Armstrong  (afterwards 
General  Armstrong),  tlien  a young  man,  and  aide-de-camp  to  General  Gates,  with 
the  rank  of  major  (Sparks’s  Life  of  Gouverneur  Morris,  I.  253;  United  States 
Magazine  for  January  1, 1823,  New  York).  The  style  of  these  papers,  consider- 


THE  CONFE  DEU  ATION. 


113 


])ointc(l  directly  to  the  sword  as  the  remedy  for  injustice ; and  it 
spoke  to  men  who  were  sufferino;  keenly  under  public  ingratitude 
and  neglect.  Its  elo(pience  and  its  passion  fell,  therefore,  upon 
hearts  not  insensible,  and  a dangerous  explosion  seemed  to  be  at 
hand.  Washington  met  the  crisis  Avith  firmness,  but  also  with 
conciliation,  lie  issued  orders  forbidding  an  assemblage  at  the 
call  of  an  anonymous  paper,  and  directing  the  officers  to  assemble 
on  Saturday,  the  15th,  to  hear  the  report  of  their  committee,  and 
to  deliberate  AAdiat  further  measures  ought  to  be  adopted  as  most 
rational  and  best  calculated  to  obtain  the  just  and  important  ob- 
ject in  \iew.  The  senior  officer  in  rank  present  AA^as  directed  to 
preside,  and  to  report  the  result  to  the  commander-in-chief. 

On  the  next  day  after  these  orders  Avere  issued,  a second 
anonymous  address  appeared  from  the  same  writer.  In  this  paper 
he  affected  to  consider  the  orders  of  Washington,  assuming  the 
direction  of  the  meeting,  as  a sanction  of  the  Avhole  proceeding 
AAdiich  he  had  proposed.  Washington  saAV  at  once  that  he  must 
be  present  at  the  meeting  himself,  or  that  his  name  AAmuld  be 
used  to  justify  measures  AAffiich  he  intended  to  discountenance  and 
preA^ent.  He  therefore  attended  the  meeting,  and  under  his  influ- 
ence, seconded  by  that  of  Putnam,  Knox,  Brooks,  and  HoAAmrd, 
the  result  AAms  the  adoption  of  certain  resolutions,  in  AAffiich  the 
officers,  after  reasserting  their  grievances,  and  rebuking  all  at- 
tempts to  seduce  them  from  their  civil  allegiance,  referred  the 
Avhole  subject  of  their  claims  again  to  the  consideration  of  Con- 
gress. 

Even  at  this  distant  day  the  peril  of  that  crisis  can  scarcely  be 
contemplated  Avithout  a shudder.  Had  the  commander-in-chiei 
been  other  than  Washington,  had  the  leading  officers  by  Avhom 
he  Avas  surrounded  been  less  than  the  noblest  of  patriots,  the  land 
Avonld  liaA^e  been  deluged  Avith  the  blood  of  a civil  Avar.  But  men 
who  had  suffered  Avhat  the  great  officers  of  the  Bevolution  had 
suffered,  had  learned  the  lessons  of*  self-control  Avhich  suffering 
teaches.  The  hard  school  of  adversity  in  Avhich  they  had  passed 


ing  tlie  period  when  tliey  appeared,  is  remarkably  good,  Tliey  are  written  with 
great  point  and  vigor  of  expression  and  great  purity  of  Englisli.  For  the  pur- 
pose for  wliich  they  were  designed — a direct  appeal  to  feeling — they  show  the 
hand  of  a master. 

I.— 8 


114 


CONSTITUTIONAL  HISTORY. 


SO  many  years  made  them  sensible  to  an  appeal  which  only  such 
a chief  as  Washington  could  make;  and,  when  he  transmitted 
their  resolves  to  Congress,  he  truly  described  them  as  ‘‘the  last 
glorious  proof  of  patriotism  wdiich  could  have  been  given  by  men 
who  aspired  to  the  distinction  of  a patriot  army ; not  only  con- 
firming their  claim  to  the  justice,  but  increasing  their  title  to  the 
gratitude,  of  their  country.”  ' 

The  effect  of  these  proceedings  Avas  the  passage  by  Congress 
of  certain  resoh^es,  on  the  22d  of  March,  1783,  commuting  the 
half-pay  for  life  to  five  years’  full  pay  after  the  close  of  the 
Avar,  to  be  recei\"ed,  at  the  option  of  Congress,  in  money,  or  in 
such  securities  as  Avere  given  to  other  creditors  of  the  United 
States.'"^  On  the  4th  of  July  the  accounts  of  the  army  Avere  or- 
dered to  be  made  up  and  adjusted,  and  certificates  of  the  sums 
due  Avere  required  to  be  given  in  the  form  directed  by  the  Super- 
intendent of  Finances.  On  the  18th  of  October  a proclamation 
Avas  issued  disbanding  the  army. 

From  this  time  the  officers  passed  into  the  Avhole  mass  of  the 
creditors  of  the  United  States ; and  although  they  continued  to 
constitute  a distinct  class  among  those  creditors,  the  historj^  of 
their  claims  is  to  be  pursued  in  connection  Avith  that  of  the  other 
public  debts  of  the  country.  The  value  of  the  Amtes  Avhich  fixed 
their  compensation,  and  paid  them  in  public  securities,  depended, 
of  course,  upon  the  ability  of  the  government  to  redeem  the  obli- 
gations Avhich  it  issued.  The  general  financial  poAvers  of  the 
Union,  therefore,  under  the  Confederation,  must  hereafter  be  con- 
sidered.   

^ Marcli  18,  1783,  Writings,  VIII.  396. 

2 The  resolves  gave  the  option  to  lines  of  the  respective  states,  and  not  to 
the  officers  individually  in  those  lines,  to  accept  or  refuse  the  commutation. 
Journals,  VIII.  162. 


CHAPTER  YIIL 

1781-1783. 

Financial  Difficulties  of  the  Confederation. — Revolutionary 
Debt. — Revenue  System  of  1783. 

It  is  not  easy  to  ascertain  the  amount  of  the  public  debt  of  the 
United  States  at  the  time  when  the  Confederation  went  into  op- 
eration. But  on  the  1st  of  January,  1783,  it  amounted  to  about 
forty-two  millions  of  dollars.  About  eight  millions  were  due  on 
loans  obtained  in  France  and  Holland,  and  the  residue  was  due  to 
citizens  of  the  United  States.  The  annual  interest  of  the  debt 
was  a little  more  than  two  million  four  hundred  thousand  dollars/ 


^ The  debt  due  to  the  crown  of  France  was  ascertained  in  1782  to  be  eighteen 
millions  of  livres ; and  by  the  contract  entered  into  by  the  United  States  with  the 
King  of  France,  on  the  16th  of  July,  1782,  the  principal  of  this  debt  was  to  be 
paid  in  twelve  annual  instalments  of  one  million  five  hundred  thousand  livres 
each,  in  twelve  years,  to  commence  from  the  third  year  after  a peace,  at  the  royal 
treasury  in  Paris.  The  interest  w^as  payable  annually,  at  the  time  and  place 
stipulated  for  the  payment  of  the  instalments  of  the  principal,  at  five  per  cent. 
The  king  generously  remitted  the  arrears  of  interest  due  at  the  date  of  the  con- 
tract. Tliere  was  also  due  to  the  King  of  France  ten  millions  of  livres,  borrowed 
by  him  of  the  States-General  of  tlie  Netherlands  for  the  use  of  the  United  States, 
and  the  payment  of  which  he  had  guaranteed.  This  sum  was  to  be  paid  in 
Paris,  in  ten  annual  instalments  of  one  million  of  livres  each,  commencing  on 
the  5th  of  November,  1787.  The  interest  on  this  loan  was  payable  in  Paris 
immediately,  and  the  first  payment  of  interest  became  due  on  the  5th  of 
November,  1782.  There  was  also  due  to  the  Farmers-General  of  France  one 
million  of  livres,  and  to  the  king  six  millions  of  livres,  on  a loan  for  the  year 
1783;  making  in  the  whole  thirty-eight  millions  of  livres,  or  $7,037,037,  due  in 
France.  There  was  also  due  to  money-lenders  in  Holland  $671,000;  for  money 
borrowed  by  Mr.  Jay  in  Spain,  $150,000  ; and  a year’s  interest  on  the  Dutch  loan 
often  millions  of  livres,  amounting  to  $26,848 ;— making  the  whole  foreign  debt 
$7,885,085.  The  domestic  debt  amounted  to  $34,115,290.  Five  millions  of  this 
were  due  to  the  army,  under  the  commutation  resolves  of  March,  1783.  The 
residue  was  held  by  other  citizens,  or  consisted  of  arrears  of  interest.  The  whole 


110 


CONSTITUTIONAL  HISTORY. 


The  Confederation  had  no  sooner  gone  into  operation  than  it 
was  perceived,  by  many  of  the  principal  statesmen  of  the  country, 
that  its  financial  powers  were  so  entirely  defective  that  Congress 
would  never  be  able,  under  them,  to  pay  even  the  interest  on  the 
public  debt.  Indeed,  before  the  Confederation  was  finally  ratified, 
so  as  to  become  obligatory  upon  all  the  states,  on  the  3d  of  Feb- 
ruary, 1781,  Congress  passed  a resolve,  recommending  to  the  several 
states,  as  indispensably  necessary,  to  vest  a power  in  Congress  to 
levy  for  the  use  of  the  United  States  a duty  of  five  per  cent,  ad 
valorem,  at  the  time  and  place  of  importation,  upon  all  foreign 
goods  and  merchandise  imported  into  any  of  the  states ; and  that 
the  money  arising  from  such  duties  should  be  appropriated  to  the 
discharge  of  the  principal  and  interest  of  the  debts  already  then 
contracted,  or  which  might  be  contracted,  on  the  faith  of  the 
United  States,  for  the  support  of  the  war;  the  duties  to  be  con- 
tinued until  the  debt  should  be  fully  and  finally  discharged. 

It  was  at  this  time  that  the  office  of  Superintendent  of  the 
Finances  was  established,  and  Kobert  Morris  was  unanimously 
elected  by  Congress  to  fill  it.  He  was  an  eminent  merchant  of 
Philadelphia,  of  known  financial  skill,  devoted  to  the  cause  of  the 
country,  and  possessed  of  very  considerable  private  resources, 
which  he  more  than  once  sacrificed  to  the  public  service.  Under 
his  administration  it  is  highly  probable  that,  if  the  states  had 
complied  with  the  requisitions  of  Congress,  the  war  would  have 
been  .brought  to  a close  at  an  earlier  period.  But  there  vras 
scarcely  any  compliance  with  those  requisitions,  and,  contempo- 
raneously with  this  neglect,  the  proposal  to  vest  in  Congress  the 
power  to  levy  duties  met  with  serious  opposition.  On  the  30th 
of  October,  1781,  Congress  made  a requisition  upon  the  states  for 
eight  millions  of  dollars,  to  meet  the  service  of  the  ensuing  year. 
In  January,  1783,  one  year  and  three  months  from  the  date  of  this 
requisition,  less  than  half  a million  of  this  sum  had  been  received 
into  the  treasury  of  the  United  States.  After  a delay  of  nearly 
two  years,  one  state  entirely  refused  its  concurrence  with  the  plan 
of  vesting  in  Congress  a power  to  levy  duties,  another  withdrew 
the  assent  it  had  once  given,  and  a third  had  returned  no  answer. 


debt  of  the  United  States  was  estimated  at  $42,000,375,  and  the  annual  interest 
of  this  sum  was  $2,415,950. 


THE  CONFEDERATION. 


117 


The  state  which  refused  to  grant  this  power  to  Congress  was 
Tthode  Island.  On  the  Oth  of  December,  1782,  Congress  deter- 
mined to  send  a deputation  to  tliat  state,  to  endeavor  to  procure 
its  assent  to  this  constitutional  change.  The  increasing  discon- 
tents of  the  army,  the  loud  clamors  of  the  public  creditors,  the 
extreme  disproportion  between  the  current  means  and  the  de- 
mands of  the  public  service,  and  the  impossibility  of  obtaining 
further  loans  in  Europe  unless  some  security  could  be  held  out  to 
lenders,  made  it  necessary  for  Congress  to  be  especially  urgent 
Avith  the  legislature  of  Kliode  Island.  But,  at  the  moment  Avhen 
the  deputation  Avas  about  to  depart  on  this  mission,  the  intelli- 
gence AA^as  received  that  Virginia  had  repealed  the  act  by  Avhich 
she  had  previously  granted  to  Congress  the  power  of  laying  duties, 
and  the  proposal  Avas  therefore  abandoned  for  a time.'  But  the 
leading  persons  then  in  Congress — Avho  saAv  the  ruin  impending 
OA^er  the  country ; Avho  Avere  aware  that  the  Avhole  amount  of 
mone}^  Avhich  Congress  had  received,  to  carry  on  the  public  busi- 
ness for  the  year  then  just  expiring,  Avas  less  than  tAvo  millions  of 
dollars,"  A\diile  the  three  branches  of  feeding,  clothing,  and  paying 
the  army  exceeded  five  millions  of  dollars  per  annum,  exclusive 
of  all  other  departments  of  the  public  service ; and  Avho  Avere 
equally  aware  that  no  means  AAdiateA^er  existed  of  paying  the 
interest  on  the  public  debts — resoh^ed  still  to  perse A^ere  in  their 
endeaAws  to  procure  the  establishment  of  revenues  equal  to  the 
purpose  of  funding  all  the  debts  of  the  United  States.  * 

Among  these  persons  Hamilton  and  Madison  Avere  the  most 
actiA^e ; and  the  part  Avhich  they  took,  at  this  period,  in  the  meas- 
ures for  sustaining  the  sinking  credit  of  the  country,  and  the  efforts 
Avhich  they  made,  are  among  the  less  conspicuous,  but  not  less  im- 
portant serAuces,  Avhich  those  great  men  performed  for  their  coun- 
try. Another  plan  Avas  deAused,  after  the  failure  of  that  of  1781, 

^ ]\[r.  Madison  (under  the  date  of  December  24, 1782)  says  that,  on  the  receipt 
of  this  intelligence,  “the  most  intelligent  members  were  deeply  affected,  and 
prognosticated  a failure  of  the  impost  scheme,  and  the  most  pernicious  effects  to 
the  cliaracter,  the  duration,  and  the  interests  of  the  Confederacy.  It  was  at 
length,  notwithstanding,  determined  to  persist  in  the  attempt  for  permanent 
revenue,  and  a committee  was  appointed  to  report  the  steps  proper  to  be  taken.” 
Debates  in  the  Congress  of  the  Confederation,  Elliot,  I.  17. 

^ $1,545,818|^  was  the  whole  amount. 


118 


CONSTITUTIONAL  HISTORY. 


for  investing  Congress  with  a power  to  derive  a revenue  from 
duties,  and,  in  April,  1783,  its  promoters  procured  for  it  the  almost 
unanimous  consent  of  Congress.  This  plan  recommended  the  states 
to  vest  in  Congress  the  power  of  levying  certain  duties  upon  goods 
imported  into  the  country,  partly  specific  and  partly  ad  valorem; 
the  proceeds  of  such  duties  to  be  applied  to  the  discharge  of  the 
interest  or  principal  of  the  debts  incurred  by  the  United  States 
for  supporting  the  war.  The  duties  were  to  be  collected  by  col- 
lectors appointed  by  the  states,  but  accountable  to  Congress.  It 
also  recommended  to  the  states  to  establish,  for  a term  of  twenty- 
five  years,  substantial  and  effectual  revenues,  exclusive  of  the  duties 
to  be  levied  by  Congress  for  supplying  their  proportions  of  fifteen 
millions  of  dollars  annually,  for  the  same  purpose  ; and  that,  when 
this  plan  had  been  acceded  to  by  all  the  states,  it  should  be  con- 
sidered as  forming  a mutual  compact,  irrevocable  by  one  or  more 
of  them  without  the  consent  of  the  whole.  It  was  also  proposed 
that  the  rule  of  proportion  fixed  by  the  Confederation  should  be 
changed  from  the  basis  of  real  estate  to  the  basis  of  population. 

This  plan  was  sent  out  to  the  states,  accompanied  by  an  ad- 
dress, prepared  by  Mr.  Madison,  in  which  the  necessity  of  the 
measure  was  urged  with  much  ability  and  force.  Annexed  to 
this  paper  were  various  documents,  exhibiting  the  nature  and 
origin  of  the  public  debts,  and  the  meritorious  characters  of  the 
various  public  creditors ; the  whole  of  the  Uewburgh  Addresses, 
and  the  proceedings  of  the  officers ; the  contracts  made  with  the 
King  of  France,  and  a very  able  answer  by  Hamilton  to  the  ob- 
jections of  Khode  Island.  Ko  stronger  and  more  direct  appeal 
was  ever  made  to  the  sense  of  right  of  any  people.  Never  was 
the  cause  of  national  honor,  public  faith,  and  public  safety  more 
powerfully  and  eloquently  set  forth.' 


^ On  tlie  final  question,  as  to  tlie  revenue  system,  Hamilton  voted  against  it. 
His  reasons  were  given  in  a letter  to  the  Governor  of  New  York,  under  date  of 
April  14, 1783.  They  were,  “ First,  that  it  does  not  designate  the  funds  (except 
the  impost)  on  which  the  whole  interest  is  to  arise ; and  by  which  (selecting  the 
capital  articles  of  visible  property)  the  collection  would  have  been  easy,  the 
funds  productive,  and  necessarily  increasing  with  the  increase  of  the  countiT. 
Secondly,  that  the  duration  of  the  funds  is  not  coextensive  with  the  debt,  but 
limited  to  twenty-five  years,  though  there  is  a moral  certainty  that  in  that  period 
the  principal  will  not,  by  the  present  provision,  be  fairly  extinguislied.  Thirdly, 


T II  E C ()  N F E I)  E R A T I O N. 


119 


And  when  we  consider  the  various  classes  of  the  public  cred- 
itors, at  the  close  of  the  war,  and  remember  that  the  debts  of  the 
country  liad  been  contracted  for  the  great  purpose  of  establishing 
its  independence,  and  tliat  there  was  scarcely  a creditor  who  had 
not  some  claim  to  the  gratitude  of  the  country,  we  cannot  but  be 
astonished  that  such  an  appeal  as  was  then  made  should  have  fallen, 
as  it  did,  unheeded  upon  the  legislatures  and  people  of  many  of 
the  states.  In  the  first  place,  the  debts  were  due  to  an  ally, 
the  King  of  France,  who  had  loaned  to  the  American  people 
his  armies  and  his  treasures;  who  had  added  to  his  loans  lib- 
eral donations  ; and  whose  very  contracts  for  repayment  contained 
proof  of  his  magnanimity.  In  the  next  place,  they  were  due  to 
that  noble  band  of  officers  and  soldiers  who  had  fought  the  bat- 
tles of  their  country,  and  who  now  asked  only  such  a portion  of 
their  dues  as  would  enable  them  to  retire,  with  the  means  of  daily 
bread,  from  the  field  of  victory  and  glory  into  the  bosom  of  peace 
and  privacy,  and  such  effectual  security  for  the  residue  of  their 
claims  as  their  country  was  unquestionably  able  to  provide.  In 
the  last  place,  they  were  due  partly  to  those  citizens  of  the  coun- 
try who  had  lent  their  funds  to  the  public,  or  manifested  their 
confidence  in  the  government  by  receiving  transfers  of  public  se- 


tliat  the  nomination  and  appointment  of  the  collectors  of  the  revenue  are  to 
reside  in  each  state,  instead  of,  at  least,  the  nomination  being-  in  the  United 
States;  the  consequence  of  which  -will  be,  that  those  states  which  have  little 
interest  in  the  funds,  by  having  a small  share  of  the  public  debt  due  to  their 
own  citizens,  will  take  care  to  appoint  such  persons  as  are  the  least  likely  to 
collect  the  revenue.”  Still,  he  urged  the  adoption  of  the  plan  by  his  own  state, 
“because  it  is  her  interest,  at  all  events,  to  promote  the  payment  of  the  public 
debt  in  continental  funds,  independent  of  the  general  considerations  of  union 
and  propriety.  I am  much  mistaken  if  the  debts  due  from  the  United  States  to 
the  citizens  of  the  state  of  New  York  do  not  considerably  exceed  its  proportion 
of  the  necessary  funds;  of  course,  it  lias  an  immediate  interest  that  there  should 
be  a continental  provision  for  them.  But  there  are  superior  motives  that  ought 
to  operate  in  every  state— the  obligations  of  national  faith,  lionor,  and  reputa- 
tion. Individuals  have  been  too  long  already  sacriticed  to  the  public  convenience. 
It  will  be  shocking,  and,  indeed,  an  eternal  reproach  to  this  country,  if  we  begin 
the  peaceable  enjoyment  of  our  independence  by  a violation  of  all  the  principles- 
of  honesty  and  true  policy.  It  is  worthy  of  remark,  that  at  least  four  fifths  of. 
the  domestic  debt  are  due  to  the  citizens  of  the  states  from  Pennsylvania,  inclu- 
sively, northward.”  Life  of  Hamilton,  II.  185,  186. 


120 


CONSTITUTIONAL  HISTORY. 


curities  from  those  who  had  so  lent,  and  partly  to  those  whose 
property  had  been  taken  for  the  public  service.’ 

The  United  States  had  achieved  their  independence.  They 
were  about  to  take  rank  among  the  nations  of  the  world.  As 
they  should  meet  this  crisis,  their  character  would  be  determined. 
The  rights  for  which  they  had  contended  were  the  rights  of 
human  nature.  These  rights  had  triumphed,  and  now  formed 
the  basis  of  the  civil  polity  of  thirteen  independent  states.  The 
forms  of  republican  government  were  therefore  called  upon  to 
justify  themselves  by  their  fruits.  The  higher  qualities  of  national 
character — justice,  good  faith,  honor,  gratitude — were  called  upon 
to  display  an  example  that  would  save  the  cause  of  republican 
liberty  from  reproach  and  disgrace." 

But,  unhappily,  the  establishment  of  peace  tended  to  weaken 
the  slender  bond  which  held  the  Union  together^  by  turning  the 
attention  of  men  to  the  internal  affairs  of  their  own  states.  The 
advantage  and  the  necessity  of  giving  the  regulation  of  foreign 
commerce  to  the  general  government,  if  perceived  at  all,  was  per- 
ceived only  by  a few  leading  statesmen.  The  commercial  states 
fancied  that  they  profited  by  a condition  of  things  which  enabled 
them  as  importers  to  levy  contributions  on  their  neighbors.  The 
people  did  not  as  yet  perceive  that,  without  some  central  authority., 
to  regulate  the  whole  trade  alike,  the  clashing  regulations  of  rival 
states  would  sooner  or  later  destroy  the  Confederacy,  l^or  were 
they  willing  to  be  taxed  for  the  payment  of  the  public  debts. 
The  people  of  the  United  States  had  not  yet  begun  to  feel  that 
such  a burden  is  to  be  borne  as  one  of  the  first  of  public  and 
social  duties.  That  part  of  the  financial  plan  of  1783  which  re- 
quired from  the  states  a pledge  of  internal  revenues  for  twenty- 
five  years,  met  with  so  much  opposition  that  Congress  was  obliged 
to  abandon  it,  and  to  confine  its  efforts  to  that  part  of  the  scheme 
which  related  to  the  duties  on  imports.  In  T786  all  the  states, 
except  Hew  Yorl^^^had  complied  with  the  latter  part  of  the  plan; 
but  the  refusal  of  that  state  rendered  the  whole  of  it  inoperative, 
and  no  resource  remained  to  Congress,  after  the  close  of  the  war, 
but  the  old  method  of  making  requisitions  on  the  states,  under 
the  rule  of  the  Confederation." 

’ Address.  • ^ Ibid. 

^ Witli  what  success  this  was  attended  may  be  seen  from  the  fact  tliat,  from 


THE  v^nFEDEt>^vATIOK 


121 


At  the  return  of  peace,  therefore,  the  Confederation  had  liad 
a trial  of  two  years  and  six  months,  as  a government  for  purposes 
of  war.  It  was  for  these  purposes,  mainly,  that  it  was  established  ; 
being  in  fact,  as  it  was  in  name,  a league  of  friendship  between 
sovereign  states,  for  their  common  defence,  the  security  of  their 
liberties,  and  their  mutual  and  general  welfare  ; the  parties  to 
which  had  bound  themselves  by  it  to  assist  each  other  against 
all  external  attacks.  Doubtless  the  framers  of  the  Confederation 
contemplated  its  duration  beyond  the  period  of  the  war ; for, 
besides  the  perpetual  character  of  the  Union,  which  it  sought  and 
]u*ofessed  to  establish,  it  had  certain  functions  which  were  mani- 
festly to  be  exercised  in  peace  as  well  as  in  war.  These  functions, 
however,  were  few.  The  government  was  framed  during  a revo- 
lutionary war,  for  the  purposes  of  that  war,  and  it  went  into 
operation  while  the  war  was  still  waged ; taking  the  place  and 
superseding  the  powers  of  the  Kevolutionary  Congress,  under 
which  the  war  had  been  commenced  and  prosecuted. 

A written  constitution,  with  a precise  and  well-defined  mode 
of  operation,  had  thus  succeeded  to  the  vague  and  indefinite,  but 
ample,  powers  of  the  earlier  government.  But  in  the  very  modes 
of  its  operation  there  was  a monstrous  defect  which  distorted 
the  whole  system  from  the  true  proportions  and  character  of  a 
government.  It  gave  to  the  Confederation  the  power  of  con- 
tracting debts,  and  at  the  same  time  withheld  from  it  the  power 
of  paying  them.  It  created  a corporate  body,  formed  by  the 
Union  and  known  as  the  United  States,  and  gave  to  it  the  faculty 
of  borrowing  money  and  incurring  other  obligations.  It  provided 
the  mode  in  which  its  treasury  should  be  supplied  for  the  reim- 
bursement of  the  public  creditor.  But  over  the  sources  of  that 
supply  it  gave  the  government  contracting  the  debts  no  power 
whatever.  Thirteen  independent  legislatures  granted  or  with- 
held the  means  which  were  to  enable  the  general  government  to 

the  year  1782  to  the  year  1786,  Congress  made  requisitions  on  the  states  for  the 
purpose  of  paying  the  interest  on  tlie  public  debts  of  more  than  six  millions  of 
dollars,  and  on  the  31st  of  March,  1787,  about  one  million  only  of  this  sura  had 
been  received.  The  interest  of  the  debt  due  to  domestic  creditors  remained 
wholly  unpaid ; money  was  borrowed  in  Europe  to  pay  the  interest  on  the 
foreign  loans ; and  the  domestic  debt  sunk  to  so  low  a value  that  it  was  often 
sold  for  one  tenth  of  its  nominal  amount. 


122 


CONSTITU^IIONAL  Q I STORY. 


pay  tlie  debts  which  the  general  constitution  had  enabled  it  to 
contract,  according  to  their  own  convenience  or  their  own  views 
and  feelings  as  to  the  purposes  for  which  those  debts  had  been 
incurred.  Yet  the  debts  w^ere  wholly  national  in  their  character, 
and  by  the  nation  they  were  to  be  discharged.  But,  by  the  opera- 
tion of  the  system  under  which  the  nation  had  undertaken  to  dis- 
charge its  obligations,  the  duty  of  performance  was  parcelled  out 
among  the  various  subordinate  corporations  of  states,  and  the 
country  was  thus  placed  in  the  position  of  an  empire  whose  power 
was  at  the  mercy  of  its  provinces,  and  was  sure  to  be  controlled 
b}^  provincial  objects  and  ideas. 

A government  thus  situated,  engaged  in  the  prosecution  of  a 
war,  perpetually  borrowing,  but  never  paying,  and  scarce  likely 
ever  to  pay,  was  in  a position  to  prosecute  that  war  with  far  less 
than  the  real  energies  and  resources  of  the  nation  ; and  it  stands 
the  recorded  opinion  of  him  Avho  conducted  his  country  throuo-h 
the  whole  struggle,  and  without  whom  it  could  not,  under  this 
defective  system,  have  achieved  its  independence,  that  the  war 
would  have  terminated  sooner,  and  would  have  cost  vastly  less 
] both  of  blood  and  treasure,  if  the  government  of  the  Union  had 
possessed  the  power  of  direct  or  indirect  taxation.’  But  the  gov- 
ernment of  the  Confederation  was  one  that  trusted  too  much  to 
the  patriotism  and  sense  of  honor  of  the  dilferent  populations  of 
the  different  states.  The  moral  feelings  of  a people  will  prompt 
to  high  and  heroic  deeds ; will  impel  them  with  irresistible  force 
and  energy  to  the  accomplishment  of  the  great  objects  of  liberty 
and  happiness ; and  will  develop  in  individuals  the  highest  capacity 
for  endurance  that  human  nature  pan display.  They  did  so  in 
the  American  Kevolution.  Tl^e  Annals;- ‘of  no  people,  struggling 
for  liberty,  exhibit  more  of  the  virtues  of  fortitude,  self-denial, 
and  an  ardent  love  of  freedom,  than  ours  exhibit,  especially  in  the 
earlier  stages  of  the  contest.  But  any  feelings  are  an  unsafe  and 
uncertain  reliance  for  the  regular  and  punctual  operations  of  civil 
government.  The  fiscal  concerns  of  a nation,  left  to  depend  prin- 
cipally upon  the  prevailing  sentiments  of  justice,  honor,  and  grati- 


* Washington’s  letter  to  Hamilton,  Marcli  31,  1783.  Writings,  VIII.  409,  410. 
Circular  Letter  to  tlie  Governors  of  the  States,  on  disbanding  the  army.  Ibid. 
439,451. 


THE  CONFEDERATION. 


123 


t-(le — upon  the  connection  between  these  sentiments  and  that  pas- 
sion lor  liberty  which  animated  the  earlier  struggles  for  national 
independence — are  exposed  to  great  hazards.  If  an  api)eal  to  the 
feelings  of  a ])Cople  constitutes  the  principal  ground  of  security 
for  the  public  creditor,  other  feelings  may  intervene,  which  will 
lead  to  a denial  of  the  justice  of  the  claim;  for  it  is  the  very 
nature  of  such  an  appeal  to  submit  the  whole  question  of  obliga- 
tion and  duty  to  popular  determination.  That  government  alone 
is  likely  to  discharge  the  just  obligations  of  any  people  which 
possesses  both  the  power  to  declare  what  those  obligations  are 
and  the  power  to  levy  the  means  of  payment,  without  a reference 
of  either  point  to  popular  sentiment. 

The  history  of  the  Confederation  contains  abundant  proofs  of 
the  soundness  of  this  position.  At  the  close  of  the  war  a debt 
of  more  than  forty  millions  of  dollars  was  due  from  the  United 
States  to  various  classes  of  creditors,  and  the  whole  of  it  had  been 
contracted  either  by  the  government  of  the  Confederation,  or 
by  its  predecessors,  for  whose  contracts  the  Confederation  was 
expressly  bound,  by  the  articles,  to  provide.  This  debt  could  not 
be  discharged  without  a grant  of  internal  revenues  from  the  states, 
and  without  a grant  of  the  power  to  collect  other  revenues  from 
the  external  trade  of  the  country.  The  appeal  that  was  made  by 
the  government  in  order  to  obtain  these  grants  was  addressed 
almost  wholly  to  the  moral  sentiments  of  the  people  of  the  dif- 
ferent states ; the  time  had  scarcely  arrived,  although  rapidly  ap- 
proaching, for  an  appeal  to  those  interests  which  were  involved 
in  the  surrender  to  the  general  government  of  the  power  of  regu- 
lating foreign  commerce ; ' and  consequently  the  arguments  ad- 


^ None  of  the  documents  connected  with  the  Address  to  the  People  of  tlie 
United  States,  issued  by  Congress  in  1783,  discussed  the  question  as  one  of 
direct  interest  and  advantage,  except  Hamilton’s  answer  to  the  objections  of 
Rhode  Island.  The  address  itself  appealed  entirely  to  considerations  of  honor, 
justice,  and  good  faith.  Hamilton’s  paper,  however,  showed  with  great  per- 
spicacity that  the  proposed  impost  would  not  be  unfavorable  to  commerce,  but 
the  contrary;  that  it  would  not  diminish  the  profits  of  the  merchant,  being  too 
moderate  in  amount  to  discourage  the  consumption  of  imported  goods,  and 
therefore  that  it  would  not  diminisli  the  extent  of  importations ; but  that,  even 
if  it  had  tliis  tendency,  it  was  a tendency  in  the  right  direction,  because  it  would 
lessen  the  proportion  of  imports  to  exports,  and  incline  the  balance  in  favor  of 


124 


CONSTITUTIONAL  HISTORY. 


dressed  to  the  sense  of  justice  and  the  feeling  of  gratitude  were 
answered  by  discussions  of  the  propriety,  justice,  and  reasonable- 
ness of  some  of  the  claims,  for  which  the  states  were  thus  called 
upon  to  provide,  as  existing  debts  of  the  country,  not  without  the 
hope,  entertained  in  some  quarters,  of  involving  the  whole  in  con- 
fusion and  final  rejection.’ 

The  design  of  the  framers  of  the  revenue  system  of  1783  was 
twofold:  first,  to  do  justice  to  the  creditors  of  the  country,  by 
procuring  adequate  power  to  fund  the  public  debts ; and  second, 
to  strengthen  and  consolidate  the  national  government,  by  means 
of  those  debts  and  of  the  various  interests  which  w^ould  be  com- 
bined in  the  great  object  of  their  liquidation.  They  foresaw,  on 
the  approach  of  peace,  that  to  leave  these  debts  to  be  provided 
for  by  the  states  individually  would  lead  to  a separation  of  in- 
terests fatal  to  the  continuance  of  the  Union ; but  that  to  make 
the  United  States  responsible  for  the  whole  of  them  would  be 
to  create  a bond  of  union,  that  w'ould  be  effectual  and  operative, 
after  the  external  pressure  of  w^ar,  which  had  hitherto  held  the 
states  together,  should  have  been  removed.  For  this  purpose 
they  undoubtedly  availed  themselves  of  the  discontents  of  the 
army,  a class  of  the  public  creditors  the  justice  of  whose  claims 
there  was  immediate  danger  in  denying.  There  is  no  reason  to 
suppose  that  these  discontents  were  promoted  by  any  one  con- 
cerned in  giving  direction  to  the  action  of  Congress.  But  before 
the  crisis  had  been  reached  in  the  Uew^burgh  Addresses,”  it  was 
perceived  to  be  extremely  important  to  prevent  the  army  from 
turning  away  from  the  general  government,  as  their  debtor,  to 
look  to  their  respective  states ; and,  after  the  imminent  hazard  of 
that  moment  had  passed,  the  claims  of  the  army  w^ere  used,  and 
used  rightfully,  to  impress  upon  the  states  the  necessity  of  yield- 
ing to  Congress  the  powers  necessary  to  do  justice.^ 

In  the  proposal  of  this  scheme  of  finance,  involving,  as  it  did, 
a material  change  in  the  operation  of  the  existing  constitution 
of  the  country,  there  was  great  wisdom ; and  it  was  eminently 


the  country..  But  the  great  question  of  yielding  the  control  of  foreign  com- 
merce to  the  Union, /or  the  Hake  of  uniformity  of  regulation^  was  not  touclied  in 
any  of  these  papers.  The  time  for  it  had  not  arrived. 

’ See  note  at  the  end  of  this  chapter.  ^ See  note  on  page  130. 


THE  CONFEDERATION. 


125 


fortuniite  that  it  went  forth  before  the  advent  of  peace,  to  be  con- 
sidered and  acted  ii])on  by  the  states.  The  system  of  the  Con- 
federation had  utterly  failed  to  supply  the  means  of  sustaining  the 
])ublic  credit  of  the  Union,  and  the  consciousness  of  that  failure 
tended  to  produce  a resolution  of  the  Union  into  its  component 
elements,  the  states.  Men  had  begun  to  abandon  the  hope  of 
paying  the  debts  of  the  country,  or,  if  they  were  to  be  paid  at  all, 
they  had  begun  to  look  to  the  states,  in  their  individual  capacities, 
as  the  ultimate  debtors,  to  whom  at  least  a part  of  the  claims  was 
to  be  referred.  Had  the  country  been  permitted  to  pass  from  a 
state  of  war  to  a state  of  peace,  without  the  suggestion  and  pro- 
posal of  a definite  system  for  funding  these  debts  on  continental 
securities,  the  Union  would  at  once  have  been  exhausted  of  all 
vitality.  The  Confederation,  left  to  discharge  the  functions  which 
belonged  to  it  in  peace,  without  the  power  of  relieving  the  bur- 
dens which  it  had  entailed  upon  the  country  during  the  war, 
would  have  been  everywhere  regarded  as  a useless  machine,  the 
purposes  of  which— poorly  answered  in  the  period  of  its  greatest 
activity— had  entirely  ceased  to  exist.  Congress  would  have  been 
attended  by  delegates  from  few  of  the  states,  if  attended  at  all;^ 
and  the  rapid  decay  of  the  Union  would  have  been  marked  by  the 
feeble,  spasmodic,  and  unsuccessful  efforts  of  some  of  them  to  dis- 
charge so  much  of  the  general  burdens  as  could  have  been  assigned 
to  them  in  severalty;  the  open  repudiation  of  others;  and  the 
final  confusion  and  loss  of  the  whole  mass  of  the  debts,  in  universal 
bankruptcy,  poverty,  and  disgrace. 

‘ As  it  was,  the  approach  of  peace  liad  reduced  the  attendance  upon  Con- 
gress below  the  constitutional  number  of  states  necessary  to  ratify  the  treaty, 
wlien  it  was  received.  On  tlie  23d  of  December,  1783,  a resolve  was  passed, 
“That  letters  be  immediately  despatclied  to  tlie  executives  of  New  Hampshire, 
Connecticut,  New  York,  New  Jersey,  South  Carolina,  and  Georgia,  informing 
tliem  that  the  safety,  honor,  and  good  faith  of  the  United  States  require  the 
immediate  attendance  of  their  delegates  in  Congress;  that  there  liave  not  been 
during  tlie  sitting  of  Congress  at  this  place  [Annapolis]  more  than  seven  states 
represented,  namely,  Massachusetts,  Rhode  Island,  Pennsylvania,  Delaware,  Mary- 
land, Virginia,  and  North  Carolina,  and  most  of  those  by  only  two  delegates; 

’ and  tliat  the  ratification  of  the  definitive  treaty,  and  several  other  matters,  of 
great  national  concern,  are  now  pending  before  Congress,  which  require  tlie 
utmost  despatch,  and  to  whicli  the  assent  of  at  least  nine  states  is  necessary.” 
Journals,  IX.  12. 


120 


CONSTITUTIONAL  HISTORY. 


But  the  comprehensive  scheme  of  1783,  although  never  adopt- 
ed, saved  the  imperfect  union  that  then  existed  from  the  destruc- 
tion to  which  it  was  hastening.  It  saved  it  for  a prolonged, 
though  feeble  existence,  through  a period  of  desperate  exhaustion. 
It  saved  it,  by  ascertaining  the  debts  of  the  country,  fixing  their 
national  character,  and  proposing  a national  system  for  their  dis- 
charge. It  directed  the  attention  of  the  states  to  the  advantage 
and  the  necessity  of  giving  up  to  the  Union  some  part  of  the  im- 
posts that  might  be  levied  on  foreign  commodities,  and  thus  led 
the  way  to  that  grand  idea  of  uniformity  of^  regulation  which  was 
afterwards  developed  as  the  true  interest  of  communities  which, 
from  their  geographical  and  moral  relations,  constitute  in  fact  but 
one  country. 

It  is  not  intended,  however,  in  assigning  this  influence  to  the 
revenue  system  proposed  in  1783,  to  suggest  that  it  contained  the 
germ  of  the  present  Constitution.  It  was  an  essentially  different 
system.  It  proposed  the  enlargement  of  the  powers  of  Congress, 
as  they  existed  under  the  Confederation,  only  by  the  grant  to  the" 
United  States  of  the  right  to  collect  certain  duties  on  foreign  im- 
portations, for  the  limited  period  of  twenty-five  years,  to  be  ap- 
plied to  the  discharge  of  the  debts  contracted  for  the  purposes  of 
the  war,  but  to  be  collected  by  officers  appointed  by  the  states, 
although  amenable  to  Congress ; and  the  levy  and  collection  by 
the  states  of  certain  internal  taxes,  during  the  same  limited  term, 
for  the  purpose  of  raising  certain  proportionate  sums,  to  be  paid 
over  to  the  United  States,  for  the  same  object.  So  far,  therefore, 
as  this  system  suggested  any  new  powers,  there  is  a wide  differ- 
ence between  its  features  and  principles  and  those  of  an  entire  and 
irrevocable  surrender  to  the  Union  of  the  whole  subject  of  taxing 
and  regulating  foreign  commerce.  But  the  influence  of  this  pro- 
posal upon  the  country,  during  the  four  years  which  followed,  is 
to  be  measured  by  the  evident  necessities  which  it  revealed,  and 
by  the  means  to  which  it  pointed  for  their  relief — means  which, 
though  never  applied,  and,  if  applied,  would  have  proved  inade- 
quate, still  showed,  through  the  period  of  increasing  weakness  in 
the  Union,  the  high  obligation  which  rested  upon  the  country,  and 
which  could  be  discharged  only  by  the  preservation  of  the  Union, 


OFFICERS’  HALF-PAY. 


127 


Note  to  Page  121:. 

ON  THE  IIALF-PAY  FOR  THE  OFFICERS  OF  THE  REVOLUTION. 

In  Connecticut  the  opposition  to  the  plan  of  enabling  Congress  to  fund  the 
])ublic  debts  arose  from  the  jealousy  with  whicli  the  provision  of  half-pay  for  the 
officers  of  the  army  had  always  been  regarded  in  that  state.  In  October,  1783, 
Governor  Trumbull,  in  an  address  to  the  assembly  declining  a re-election,  had 
sj)oken  of  the  necessity  of  enlarging  the  powers  of  Congress,  and  of  strengthen- 
ing the  arm  of  the  government.  A committee  reported  an  answer  to  this  ad- 
dress, which  contained  a paragraph  approving  of  the  principle  which  the  gov- 
ernor had  inculcated,  but  it  was  stricken  out  in  the  lower  house.  Jonathan 
Trumbull,  Jr.,  who  had  been  one  of  Washington’s  aids,  thus  wrote  to  him  con- 
cerning the  rejection  of  this  paragraph : “ It  was  rejected,  lest,  by  adopting  it, 
they  should  seem  to  convey  to  tlie  people  an  idea  of  their  concurring  with  the 
])olitical  sentiments  contained  in  the  address;  so  exceedingly  jealous  is  the 
spirit  of  this  state  at  present  respecting  the  powers  and  the  engagements  of  Con- 
gress, arising  principally  from  their  aversion  to  the  half-pay  and  commutation 
granted  to  the  army;  principally,  I say,  arising  from  this  cause.  It  is  but  too 
true,  that  some  few  are  wicked  enough  to  hope  that,  by  means  of  this  clamor, 
they  may  be  able  to  rid  themselves  of  the  wdiole  public  debt,  by  introducing  so 
much  confusion  into  public  measures  as  shall  eventually  produce  a general  abo- 
lition of  the  whole”  (Writings  of  Washington,  IX.  5,  note).  It  appears  from 
the  Journals  of  Congress  that  in  November,  1783,  the  House  of  Representatives 
of  Connecticut  sent  some  remonstrance  to  Congress  respecting  the  resolution 
wdiich  had  granted  half-pay  for  life  to  the  officers,  which  was  referred  to  a com- 
mittee, to  be  answered.  In  the  report  of  this  committee  it  was  said  that  “ the 
resolution  of  Congress  referred  to  appears  by  the  yeas  and  nays  to  have  been 
passed  according  to  the  then  established  rules  of  that  body  in  transacting  the 
business  of  the  United  States;  the  resolution  itself  had  public  notoriety,  and 
does  not  appear  to  have  been  formally  objected  against  by  the  legislature  of  any 
state  till  after  the  Confederation  was  completely  adopted,  nor  till  after  the  close 
of  the  wary  These  words  were  stricken  out  from  the  report  by  a vote  of  six 
states  against  one,  two  states  declining  to  vote.  The  journal  gives  no  further 
account  of  the  matter.  (Journals,  IX.  79.  March  12,  1784.) 

In  Massachusetts  the  half-pay  had  always  been  equally  unpopular.  The 
legislature  of  that  state,  on  the  11th  of  July,  1783,  addressed  a letter  to  Con- 
gress, to  assign,  as  a reason  for  not  agreeing  to  the  impost  duty,  the  grant  of 
half-pay  to  the  officers.  The  tone  of  this  letter  does  little  credit  to  the  state. 

“ Commonwealth  of  Massachusetts. 

“Boston,  July  11,  1783. 

“ Sir, — The  Address  of  the  United  States  in  Congress  assembled  has  been 
received  by  the  legislature  of  the  Commonwealth  of  Massachusetts ; and,  while 
they  consider  themselves  as  bound  in  duty  to  give  Congress  the  highest  assur- 


128 


CONSTITUTIONAL  HISTORY. 


ance  tliat  no  measures  consistent  with  their  circumstances,  and  the  Constitution 
of  tills  government  and  the  Federal  Union,  shall  remain  unattempted  by  them 
to  furnish  those  supplies  which  justice  demands,  and  which  are  necessary  to 
support  the  credit  and  honor  of  the  United  States,  they  find  themselves  under 
a necessity  of  addressing  Congress  in  regard  to  the  subject  of  the  half-pay  of 
the  officers  of  the  army,  and  the  proposed  commutation  thereof;  with  some 
other  matters  of  a similar  nature,  wfiiich  produce  among  the  peojDle  of  this  com- 
monwealth the  greatest  concern  and  uneasiness,  and  involve  the  legislature 
thereof  in  no  small  embarrassments.  The  legislature  have  not  been  unacquaint- 
ed with  the  sutferings,  nor  are  they  forgetful  of  the  virtue  and  bravery,  of  their 
fellow-citizens  in  the  army;  and  while  they  are  sensible  that  justice  requires 
they  should  be  fully  compensated  for  their  services  and  sufferings,  at  the  same 
time  it  is  most  sincerely  wished  that  they  may  return  to  the  bosom  of  their 
country  under  such  circumstances  as  may  place  them  in  the  most  agreeable 
light  with  their  fellow-citizens.  Congress,  in  the  year  1780,  resolved  that  the 
officers  of  the  army,  who  should  continue  therein  during  the  war,  should  be  en- 
titled to  half-pay  for  life;  and  at  the  same  time  resolved  that  all  such  as  should 
retire  therefrom,  in  consequence  of  the  new'  arrangement  which  was  then  or- 
dered to  take  place,  should  be  entitled  to  the  same  benefit ; a commutation  of 
which  half-pay  has  since  been  proposed.  The  General  Court  are  sensible  that 
the  United  States  in  Congress  assembled  are,  by  the  Confederation,  vested  with 
a discretionary  power  to  make  provision  for  the  support  and  payment  of  the 
army,  and  such  civil  officers  as  may  be  necessary  for  managing  the  general  af- 
fairs of  the  United  States;  but  in  making  such  provision,  due  regard  ever  ought 
to  be  had  to  the  welfiire  and  happiness  of  the  people,  the  rules  of  equity,  and 
the  spirit  and  general  design  of  the  Confederation.  We  cannot,  on  this  occa- 
sion, avoid  saying,  that,  wdth  due  respect,  w'e  are  of  opinion  those  principles 
were  not  duly  attended  to,  in  the  grant  of  half-pay  to  the  officers  of  the  army; 
that  being,  in  our  opinion,  a grant  of  more  than  an  adequate  rew'ard  for  their 
services,  and  inconsistent  with  that  equality  which  ought  to  subsist  among  citi- 
zens of  free  and  republican  states.  Such  a measure  appears  to  be  calculated  to 
raise  and  exalt  some  citizens  in  wealth  and  grandeur,  to  the  injury  and  oppres- 
sion of  others,  even  if  the  inequality  which  will  happen  among  the  officers  of  the 
army,  wdio  have  performed  from  one  to  eight  years’  service,  should  not  be  taken 
into  consideration.  The  observations  which  have  been  made  with  regard  to  the 
officers  of  the  army  will  in  general  apply  to  the  civil  officers  appointed  by  Con- 
gress, who,  in  our  opinion,  have  been  allow’ed  much  larger  salaries  than  are  con- 
sistent with  the  state  of  our  finances,  the  rules  of  equity,  and  a proper  regard 
to  the  public  good.  And,  indeed,  if  the  United  States  w^ere  in  the  most  wealthy 
and  prosperous  circumstances,  it  is  conceived  that  economy  and  moderation, 
with  respect  to  grants  and  allowances,  in  opposition  to  the  measures  which  have 
been  adopted  by  monarchical  and  luxurious  courts,  would  most  highly  conduce 
to  our  reputation,  even  in  the  eyes  of  foreigners,  and  would  cause  a people,  who 
have  been  contending  with  so  much  ardor  and  expense  for  republican  constitu- 
tions and  freedom,  which  cannot  be  supported  without  frugality  and  virtue,  to 


OFFICERS’  HALF-FAY. 


m 


appear  with  dignily  and  consistency;  and  at  the  same  time  wonld,  in  the  best 
manner,  conduce  to  the  public  happiness.  It  is  tl»ought  to  be  essentially  neces- 
sary, especially  at  the  present  time,  that  Congress  should  bo  expressly  informed 
that  such  measures  as  are  complained  of  are  extremely  opposite  and  irritating 
to  the  principles  and  feelings  which  the  people  of  some  Eastern  States,  and  of 
this  in  })articular,  inherit  from  their  ancestry.  The  legislature  cannot  without 
horror  entertain  the  most  distant  idea  of  the  dissolution  of  the  Union  which 
subsists  between  the  United  States,  and  the  ruin  which  would  inevitably  ensue 
thereon ; but  with  great  pain  they  must  observe  that  the  extraordinary  grants 
and  allowances  which  Congress  have  thought  proper  to  make  to  their  civil  and 
military  officers  have  produced  such  effects  in  this  commonwealth  as  are  of 
a thre:itening  aspect.  From  these  sources,  and  particularly  from  the  grant  of 
half-pay  to  the  officers  of  the  army,  and  the  proposed  commutation  thereof,  it 
has  arisen  that  the  General  Court  has  not  been  able  hitherto  to  agree  in  grant- 
ing to  the  United  States  an  impost  duty,  agreeable  to  the  recommendation  of 
Congress;  while  the  General  Assembly  at  the  same  time  have  been  deeply  im- 
pressed with  a sense  of  the  necessity  of  speedily  adopting  some  effectual  meas- 
ures for  supplying  the  continental  treasury,  for  the  restoration  of  the  public 
credit,  and  the  salvation  of  the  country ; and  propose,  as  the  present  session  is 
near  terminating,  again  to  take  the  subject  of  the  impost  duty  into  consider- 
ation early  in  the  next.  From  these  observations  you  may  easily  learn  the 
difficult  and  critical  situation  the  legislature  is  in,  and  they  rely  on  the  wisdom 
of  Congress  to  adopt  and  propose  some  measure  for  relief  in  this  extremity. 

“ In  the  name  and  by  order  of  the  General  Court, 

“ We  are  your  Excellency’s  most  obedient  servants, 

“ Samuel  Adams, 

President  of  the  Senate. 

“ Tristram  Dalton, 

SpeaTcer  of  the  House  of  Representatives. 

“His  Excellency  the  President  of  Congress.” 

This  letter  was  thought  worthy  an  answer,  and  accordingly  a report  upon  it 
was  brought  in  by  Mr.  Madison,  and  adopted  in  Congress,  containing  among 
other  things  the  following : 

“ Your  committee  consider  the  measure  of  Congress  as  the  result  of  a delib- 
erate judgment,  framed  on  a general  view  of  the  interests  of  the  Union  at 
large.  They  consider  it  to  be  a truth,  that  no  state  in  this  Confederacy  can 
claim  (more  equitably  than  an  individual  in  a society)  to  derive  advantages  from 
a union,  without  conforming  to  the  judgment  of  a constitutional  majority  of 
those  who  compose  it;  still,  however,  they  conceive  it  will  be  found  no  less 
true,  that,  if  a state  every  way  so  important  as  Massachusetts  should  withhold 
her  solid  support  to  constitutional  measures  of  the  Confederacy,  the  result  must 
be  a dissolution  of  the  Union  ; and  then  she  must  hold  lierself  as  alone  respon- 
sible for  the  anarchy  and  domestic  confusion  that  may  succeed,  and  for  expos- 
ing all  these  confederated  states  (who  at  the  commencement  of  tlie  late  war 

I.— 9 


130 


CONSTITUTIONAL  IIISTOKY. 


leagued  to  defend  her  violated  riglits)  an  easy  prey  to  the  macliinations  of  their 
enemies  and  tlie  sport  of  European  politics;  and  therefore  they  are  of  opinion 
that  Congress  sliould  still  confide  that  a free,  enlightened,  and  generous  people 
will  never  hazard  consequences  so  perilous  and  alarming,  and  in  all  circum- 
stances rely  on  the  wisdom,  temper,  and  virtue  of  their  constituents,  which 
(guided  by  an  all-wise  Providence)  have  ever  interposed  to  avert  impending 
evils  and  misfortunes.  Your  committee  beg  leave  further  to  observe  that,  from 
an  earnest  desire  to  give  satisfaction  to  such  of  the  states  as  expressed  a dislike 
to  the  half-pay  establishment,  a sum  in  gross  was  proposed  by  Congress,  and  ac- 
cepted by  the  officers,  as  an  equivalent  for  their  half-pay.  That  your  committee 
are  informed  that  such  equivalent  was  ascertained  on  establislied  principles 
wbich  are  acknowledged  to  be  just,  and  adopted  in  similar  cases;  but  that  if 
the  objections  against  the  commutation  were  ever  so  valid,  yet,  as  it  is  not  now 
under  the  arbitration  of  Congress,  but  an  act  finally  adopted,  and  the  national 
faitli  pledged  to  carry  it  into  effect,  they  could  not  be  taken  into  consideration. 
With  regard  to  the  salaries  of  civil  officers,  it  may  be  observed  that  the  neces- 
saries of  life  have  been  very  high  during  the  war;  hence  it  has  happened  that 
even  the  salaries  complained  of  have  not  been  found  sufficient  to  induce  persons 
properly  qualified  to  accept  of  many  important  offices,  and  the  public  business 
is  left  undone.”  (Journals  of  Congress,  VIII.  379-385.  September  25,  1783.) 


Note  to  page  124. 

ON  THE  NEWBURGH  ADDRESSES. 

There  was  a period  in  this  business  when  the  officers  would  have  accepted 
from  Congress  a recommendation  to  their  several  states  for  the  payment  of  their 
dues.  , Their  committee,  consisting  of  General  McDougall,  Colonel  Brooks  of 
IMassachusetts,  and  Colonel  Ogden  of  New  Jersey,  arrived  in  Philadelphia 
about  the  1st  of  January.  In  their  memorial  to  Congress  they  abstained  from 
designating  the  funds  from  which  they  desired  satisfaction  of  their  demands, 
because  their  great  object  was  to  get  a settlement  of  their  accounts  and  an 
equivalent  for  the  half-pay  established.  But  they  were,  in  fact,  at  one  time,  im- 
pressed with  the  belief  that  their  best,  and  indeed  their  only  security,  was  to 
be  sought  for  in  funds  to  be  provided  by  the  states,  under  the  recommendation 
of  Congress.  This  plan  would  have  involved  a division  of  the  army  into  thir- 
teen different  parts,  leaving  the  claims  of  each  part  to  be  satisfied  by  its  own 
state;  a course  that  would  unquestionably  have  led  to  the  rejection  of  their  de- 
mands in  some  states,  and  probably  in  many.  To  prevent  this,  there  is  little 
doubt  that  the  influence  of  those  members  of  Congress  who  wished  to  promote 
their  interests,  and  to  identify  them  with  the  interests  of  the  other  public  credi- 
tors, was  used  ; and  by  the  middle  of  February  the  committee  of  the  officers 
became  satisfied  that  the  army  must  unitedly  pursue  a common  object,  insisting 
on  the  grant  of  revenues  to  the  general  government,  adequate  to  the  liquidation 


NEWBURGH  ADDRESSES. 


H31 

of  all  the  public  debts.  (Letter  of  Gouverneur  Morris  to  General  Greene,  Febru- 
ary 15,  1783.  Life,  by  Sparks,  I.  250.)  The  point,  however,  wliich  tliey  con- 
tinued to  urge,  was  the  commutation;  and  upon  this  they  encountered  great 
obstacles.  The  committee  of  Congress  to  whom  their  memorial  was  referred 
went  into  a critical  examination  of  the  })rinciples  of  annuities,  in  order  to  de- 
termine on  an  equivalent  for  the  half-pay  for  life,  promised  by  the  resolve  of 
1780.  The  result  was  a report  declaring  that  six  years’  full  pay  was  the  proper 
equivalent.  This  report  was  followed  by  a declaratory  resolve,  which  was  passed, 
“ that  the  troops  of  the  United  States,  in  common  with  all  the  creditors  of  the 
same,  have  an  undoubted  right  to  expect  security;  and  that  Congress  will  make 
every  effort  to  obtain,  from  the  respective  states,  substantial  funds,  adequate  to 
the  object  of  funding  the  whole  debt  of  the  United  States,  and  will  enter  upon  an 
immediate  and  full  eonsideration  of  the  nature  of  such  funds,  and  the  most  likely 
mode  of  obtaining  them.”  The  remainder  of  the  report,  however,  was  referred  to 
a now  committee  of  five,  the  number  of  years  being  considered  too  many.  The 
second  committee  reported  five  years’  whole  pay  as  an  equivalent,  after  another 
calculation  of  annuities  ; but  the  approval  of  nine  states  could  not  be  obtained. 
A desire  was  then  expressed  by  some  of  the  members,  who  were  opposed  both 
to  the  commutation  and  the  half-pay,  to  have  more  time  for  consideration,  and 
this  was  granted. 

This  was  the  position  of  the  matter  on  the  8th  of  February,  when  the  com- 
mittee of  the  officers  wrote  to  General  Knox  on  the  part  of  the  army.  They 
stated  that  “ Massachusetts,  New  York,  Pennsylvania,  Virginia,  North  and  South 
Carolina  were  for  the  equivalent;  New  Hampshire,  Rhode  Island,  Connecticut, 
and  Jersey  against  it.  There  is  some  prospect  of  getting  one  more  of  these 
states  to  vote  for  the  commutation.  If  this  is  accomplished,  with  Maryland 
and  Delaware,  the  question  will  be  carried;  whenever  it  is,  as  the  report  now 
stands,  it  will  be  at  the  election  of  the  line,  as  such,  to  accept  of  the  commu- 
tation or  retain  their  claim  to  the  half-pay.  Congress  being  determined  that  no 
alteiation  shall  take  place  in  the  emolument  held  out  to  the  army  but  by  tlieir 
consent.  This  rendered  it  unnecessary  for  us  to  consult  the  army  on  the  equiva- 
lent foi  half-pay.  The  zeal  of  a great  number  of  members  of  Congress  to  get 
continental  funds,  while  a few  wished  to  have  us  referred  to  the  states,  induced 
us  to  conceal  what  funds  we  wished  or  expected, iest  our  declaration  for  one  or 
the  other  might  retard  a settlement  of  our  accounts,  or  a determination  on  the 
equivalent  for  half-pay.  Indeed,  some  of  our  best  friends  in  Congress  declared, 
however  desirous  they  were  to  have  our  accounts  settled,  and  the  commutation 
fixed,  as  well  as  to  get  funds,  yet  they  would  oppose  referring  us  to  the  states 
for  a settlement  and  security,  till  all  prospect  of  obtaining  continental  funds 
was  at  an  end.  Whether  this  is  near  or  not,  as  commutation  for  the  half-pay 
was  one  of  the  principal  objects  of  the  address,  the  obtaining  of  that  is  neces- 
sary, previous  to  our  particularizing  what  fund  will  be  most  agreeable  to  us: 
this  must  be  determined  by  circumstances.  If  Congress  get  funds,  we  shall  be 
secured.  If  not,  the  equivalent  settled,  a principle  will  be  established,  which 
will  be  more  acceptable  to  the  Eastern  States  than  half-pay,  if  application  must 


132 


CONSTITUTIONAL  HISTORY. 


Ije  made  to  tliem.  As  it  is  not  likely  that  Congress  will  be  able  to  determine 
soon  on  the  commutation  (for  the  reasons  above  mentioned),  it  is  judged  neces- 
sary that  Colonel  Brooks  return  to  the  army,  to  give  them  a more  particular 
detail  of  our  prospects  than  can  be  done  in  the  compass  of  a letter.”  (Writings 
of  Washington,  VIII.  553,  554.) 

Two  classes  of  persons  existed  at  this  time  in  Congress,  of  very  different 
views;  the  one  attaclied  to  state,  the  otlier  to  continental  politics;  the  one 
strenuous  advocates  for  funding  the  piildic  debts  upon  solid  securities,  the  other 
opposed  to  this  plan,  and  finally  yielding  to  it  only  in  consequence  of  the  clam- 
ors of  the  army  and  the  other  public  creditors.  The  advocates  for  continental 
funds,  convinced  that  nothing  could  be  done  for  the  public  credit  by  any  other 
measures,  determined  to  blend  the  interests  of  the  army  and  those  of  the  other 
creditors  in  their  scheme,  in  order  to  combine  all  the  motives  that  could  operate 
upon  different  descriptions  of  men  in  the  different  states.  Washington,  who 
naturally  regarded  the  interests  of  the  army  as  the  first  object  in  point  or  im- 
portance, and  who  had  not  given  his  attention  so  much  to  the  general  financial 
affairs  of  the  country,  seems  to  have  thought  it  unadvisable  to  bring  the  claims 
of  the  army  before  the  states,  in  connection  with  the  other  public  debts.  On 
the  4th  of  March  he  wrote  to  Hamilton  (then  in  Congress)  that  “ the  just  claims 
of  the  army  ought,  and  it  is  to  be  hoped  will,  have  their  weight  with  every 
sensible  legislature  in  the  United  States,  if  Congress  point  to  their  demands,  and 
show,  if  the  case  is  so,  the  reasonableness  of  them,  and  the  impracticability  of 
complying  with  them  without  their  aid.  In  any  other  point  of  view,  it  would 
in  my  opinion  be  impolitic  to  introduce  the  army  on  the  tapis,  lest  it  should 
excite  jealousy  and  bring  on  its  concomitants.  The  states  surely  cannot  be  so 
devoid  of  common  sense,  common  honesty,  and  common  policy,  as  to  refuse 
their  aid  on  a full,  clear,  and  candid  representation  of  facts  from  Congress;  more 
especially  if  these  should  be  enforced  by  members  of  their  owm  body,  vdio  might 
demonstrate  what  the  inevitable  consequences  of  failure  will  lead  to.”  (Writings, 
VIII.  390.) 

But  while  the  advocates  of  the  continental  system  were  maturing  their  plans 
new  difficulties  arose,  in  consequence  of  the  proceedings  of  the  officers  at  New- 
burgh, and  of  the  jealousies  which  tlie  army  began  to  entertain.  Among  the 
resolutions  adopted  by  the  officers  was  one  which  expressed  their  unshaken 
confidence  in  the  justice  of  Congress  and  the  country,  and  their  conviction  that 
Congress  would,  not  disband  them  until  their  accounts  had  been  liquidated 
and  adequate  funds  established  for  their  jDayinent.  But  Congress  had  no  con- 
stitutional power,  under  the  Confederation,  to  demand  funds  of  the  states;  and 
to  determine  that  the  army  should  be  continued  in  service  until  the  states 
granted  the  funds,  which  it  was  intended  to  recommend,  would  be  to  determine 
that  it  should  remain  a standing  army  in  time  of  peace,  until  the  states  should 
comply  with  the  recommendation.  On  the  other  hand.  Congress  had  no  j^resent 
means  of  paying  the  army,  if  they  were  to  disband  them.  This  dilemma  ren- 
dered it  necessary  to  evade  for  a short  time  any  explicit  declaration  of  the 
purposes  of  Congress  as  to  disbanding  the  army ; and  hence  arose  a jealousy. 


NEWBURGH  ADDRESSES. 


133 


on  the  part  of  the  army,  that  they  were  to  be  used  as  mere  puj)pets  to  operate 
upon  the  country  in  favor  of  a general  revenue  system.  Washington  himself 
communicated  the  existence  of  these  suspicions  to  Hamilton,  on  the  4th  of 
April,  advising  that  the  army  should  be  disbanded  as  soon  as  possible,  consult- 
ing its  wishes  as  to  the  motle.  He  also  intimated  that  the  Superintendent  of 
the  Finances,  Robert  JMorris,  was  suspected  to  be  at  the  bottom  of  the  scheme 
of  keeping  the  army  together,  for  the  puipose  of  aiding  the  adoption  of  the 
revenue  system. 

11  amilton’s  reply  explains  the  position  of  the  whole  matter,  and  the  motives 
and  purposes  of  those  with  whom  he  acted.  “But  the  question  was  not  merely 
how  to  do  justice  to  the  creditors,  but  how  to  restore  public  credit.  Taxation 
in  this  country,  it  was  found,  could  not  supply  a sixth  part  of  the  public  neces- 
sities. The  loans  in  Europe  were  far  short  of  the  balance,  and  the  prospect 
every  day  diminishing;  the  court  of  France  telling  us,  in  plain  terms,  she  could 
not  even  do  as  much  as  she  had  done;  individuals  in  Holland,  and  everywhere 
else,  refusing  to  part  with  their  money  on  the  precarious  tenure  of  the  mere 
faith  of  this  country,  without  any  pledge  for  the  payment  either  of  principal  or 
interest.  In  this  situation,  what  was  to  be  done  ? It  was  essential  to  our  cause 
that  vigorous  efforts  should  be  made  to  restore  public  credit;  it  was  necessary 
to  combine  all  the  motives  to  this  end  that  could  operate  upon  different  descrip- 
tions of  persons  in  the  different  states.  The  necessity  and  discontents  of  the 
army  presented  themselves  as  a powerful  engine.  But,  sir,  these  gentlemen 
would  be  puzzled  to  support  their  insinuations  by  a single  fact.  It  was  indeed 
proposed  to  appropriate  the  intended  impost  on  trade  to  the  army  debt,  and, 
what  was  extraordinary,  by  gentlemen  who  had  expressed  their  dislike  to  the 
principle  of  the  fund.  I acknowledge  I was  one  that  opposed  this,  for  the 
reasons  already  assigned,  and  for  these  additional  ones : that  was  the  fund  on 
which  we  most  counted  to  obtain  further  loans  in  Europe;  it  was  necessary  we 
should  have  a fund  sufRcient  to  pay  the  interest  of  what  had  been  borrowed 
and  what  was  to  be  borrowed.  The  truth  was,  these  people  in  this  instance 
wanted  to  play  off  the  army  against  the  funding  system.  As  to  Mr.  Morris,  I 
will  give  your  Excellency  a true  explanation  of  his  conduct.  He  had  been  for 
some  time  pressing  Congress  to  endeavor  to  obtain  funds,  and  had  found  a great 
backwardness  in  tlie  business.  He  found  the  taxes'unproductive  in  the  different 
states;  lie  found  the  loans  in  Europe  making  a very  slow  progress ; he  found 
himself  pressed  on  all  hands  for  supplies;  he  found  himself,  in  short,  reduced 
to  this  alternative— either  of  making  engagements  which  he  could  not  fulfil,  or 
declaring  his  resignation  in  case  funds  were  not  established  liy  a given  time. 
Had  he  followed  the  first  course,  the  bubble  must  soon  have  burst ; he  must 
have  sacrificed  his  credit  and  his  character,  and  public  credit,  already  in  a ruined 
condition,  would  have  lost  its  last  support.  He  wisely  judged  it  better  to 
resign;  this  might  increase  the  embarrassments  of  the  moment,  but  the  neces- 
sity of  the  case,  it  was  to  be  hoped,  would  produce  the  proper  measures,  and 
he  might  then  resume  the  direction  of  the  machine  with  advantage  and  success. 
He  also  had  some  hope  that  his  resignation  would  prove  a stimulus  to  Congress. 


134 


CONSTITUTIONAL  HISTORY. 


lie  Avas,  liowcver,  ill-advised  in  the  publication  of  Ins  letters  of  resignation. 
This  was  an  imprudent  step,  and  has  given  a handle  to  his  personal  enemies, 
who,  by  ])laying  uj)on  the  passions  of  others,  have  drawn  some  well-meaning 
men  into  the  cry  against  him.  But  Mr.  Morris  certainly  deserves  a great  deal 
from  his  country.  I believe  no  man  in  this  country  but  himself  could  have  ke[)t 
the  money  machine  going  during  the  period  he  has  been  in  office.  From  everv- 
thing  that  appears,  his  administration  has  been  upright  as  well  as  able.  The 
truth  is,  the  old  leaven  of  Deane  and  Lee  is  at  this  day  working  against  Mr. 
Morris.  He  happened  in  that  dispute  to  have  been  on  the  side  of  Deane,  and 
certain  men  can  never  forgive  him.  . . . The  matter,  with  respect  to  the  army, 
which  has  occasioned  most  altercation  in  Congress,  and  most  dissatisfaction  in 
the  army,  has  been  the  half-pay.  The  opinions  on  this  head  have  been  two: 
one  party  was  for  referring  the  several  lines  to  their  states,  to  make  such  com- 
mutation as  they  should  think  proper;  the  other,  for  making  the  commutation 
by  Congress,  and  funding  it  on  continental  security.  I was  of  this  last  opinion, 
and  so  were  all  those  who  will  be  represented  as  having  made  use  of  the  army 
as  our  puppets.  Our  principal  reasons  were  : First,  by  referring  the  lines  to 
their  respective  states,  those  which  were  opposed  to  the  half-pay  would  have 
taken  advantage  of  the  officers’  necessities  to  make  the  commutation  short  of 
an  equivalent.  Secondly,  the  inequality  w'hich  would  have  arisen  in  the  different 
states  when  the  officers  came'to  compare  (as  has  happened  in  other  cases)  would 
have  been  a new  source  of  discontent.  Thirdly,  such  a reference  was  a continu- 
ance of  the  old,  wretched  state  system,  by  which  the  ties  between  Congress  and 
the  army  have  been  nearly  dissolved  — by  which  the  resources  of  the  states 
have  been  diverted  from  the  common  treasury  and  wasted  : a system  which  your 
Excellency  has  often  justly  reprobated.  I have  gone  into  these  details  to  give 
you  a just  idea  of  the  parties  in  Congress.  I assure  you,  upon  my  honor,  sir,  I 
have  given  you  a candid  statement  of  facts,  to  the  best  of  my  judgment.  The 
men  against  whom  the  suspicious  you  mention  must  be  directed,  are  in  general 
the  most  sensible,  the  most  liberal,  the  most  independent,  and  the  most  respect- 
able characters  in  our  body,  as  well  as  the  most  unequivocal  friends  to  the 
army  ; in  a word,  they  are  the  men  who  think  continentally.”  (Life  of  Hamilton, 
11.  162-164.) 

Among  the  officers  mentioned  in  the  text,  at  jDage  113,  as  seconding  the 
exertions  of  Washington  in  putting  down  the  Newburgh  disturbances,  the 
reader  will  have  observed  the  name  of  Putnam.  This  was  Rufus  Putnam,  who 
had  served  as  a colonel  through  the  war,  and  had  been  made  a brigadier-gen- 
eral about  three  months  before  this  occurrence.  General  Israel  Putnam  was 
never  with  the  army  after  December,  1779,  at  which  time  he  suffered  a paralysis. 


CHAPTER  IX. 

1781-1783. 

Opinions  and  Effoets  of  Washington  and  of  Hamilton. — De- 
cline OF  THE  Confederation. 

The  proposal  of  the  revenue  system  went  forth  to  the  country, 
although  not  in  immediate  connection,  yet  nearly  at  the  same  time, 
with  those  comprehensive  and  weighty  counsels  which  Washington 
addressed  to  the  states,  when  the  great  object  for  which  he  had 
entered  the  service  of  his  country  had  been  accomplished,  and  he 
was  about  to  return  to  a private  station.  His  relations  to  the 
people  of  this  country  had  been  peculiar.  He  had  been,  not 
only  the  leader  of  their  armies,  but,  in  a great  degree,  their  civil 
counsellor;  for  although  he  had  rarely,  if  ever,  gone  out  of  the 
province  of  his  command  to  give  shape  or  direction  to  constitu- 
tional changes,  yet  the  whole  circumstances  of  that  command  had 
constantly  placed  him  in  contact  with  the  governments  of  the 
states,  as  well  as  with  the  Congress  ; and  he  had  often  been  obliged 
to  interpose  tlie  influence  of  his  own  character  and  opinions  with 
all  of  them,’  in  order  that  the  civil  machine  might  not  wholl}^  cease 
to  move.  At  the  moment  when  he  was  about  to  lay  aside  the 
sword,  he  saw  very  clearly  that  there  were  certain  principles  of 
conduct  which  must  be  called  into  action  m the  states,  and  amonir 
the  people  of  the  states,  for  the  preservation  of  the  Union.  He, 
and  he  alone,  could  address  to  them  with  effect  the  requisite  words 
of  admonition,  and  point  out  the  course  of  safety  and  success. 
This  great  service,  the  last  act  of  his  revolutionary  official  life, 
was  performed  with  all  the  truth  and  wisdom  of  his  character, 
before  he  proceeded  to  resign  into  the  hands  of  Congress  the 
power  which  he  had  held  so  long,  and  which  he  now  surrendered 
with  a virtue,  a dignity,  and  a sincerity  with  which  no  such  power 
has  ever  been  laid  down  by  any  of  the  leaders  of  revolutions  whom 
the  world  has  seen. 


136 


CONSTITUTIONAL  HISTORY. 


Ills  object  in  this  address  was  not  so  much  to  urge  the  adop- 
tion of  particular  measures,  as  to  inculcate  principles  which  he 
believed  to  be  essential  to  the  welfare  of  the  country.  So  clearly, 
however,  did  it  appear  to  him  that  the  honor  and  independence 
of  the  country  were  involved  in  the  adoption  of  the  revenue  sys- 
tem which  Congress  had  recommended,  that  he  did  not  refrain 
from  urging  it  as  the  sole  means  by  which  a national  bankruptcy 
could  be  averted,  before  any  different  plan  could  be  proposed  and 
adopted. 

But  how  far,  at  this  time,  any  other  or  further  plans  for  the 
formation  of  a better  constitution  had  been  formed,  or  how  far 
any  one  perceived  both  the  vicious  principle  of  the  Confederation 
and  the  means  of  substituting  for  it  another  and  more  efficient 
power,  we  can  judge  only  by  the  published  writings  of  the  Kev- 
olutionary  statesmen.  It  is  quite  certain  that  at  this  period 
Washington  saw  the  defects  of  the  Confederation,  as  he  had  seen 
them  clearly,  and  suffered  under  them,  from  the  beginning.  He 
saw  that  in  the  powers  of  the  states,  which  far  exceeded  those  of 
the  Continental  Congress,  lay  the  source  of  all  the  perplexities 
which  he  had  experienced  in  the  course  of  the  wmr,  and  of  almost 
the  whole  of  the  difficulties  and  distresses  of  the  army ; and  that 
to  form  a new  constitution,  which  would  give  consistency,  stabil- 
ity, and  dignity  to  the  Union,  was  the  great  problem  of  the  time. 
He  saw,  also,  that  the  honor  and  true  interest  of  this  country 
were  involved  in  the  development  of  continental  power;  that 
local  and  state  politics  were  destined  to  interfere  with  the  estab- 
lishment of  any  more  liberal  and  extensive  plan  of  government, 
which  the  circumstances  of  the  country  required,  as  they  had 
perpetually  weakened  the  bond  by  which  the  Union  had  thus  far 
been  held  together;  and  that  such  local  influences  would  make 
these  states  the  sport  of  European  policy.  He  predicted,  more- 
over, that  the  country  would  reach,  if  it  reached  at  all,  some  sys- 
tem of  sufficient  capabilities,  only  through  mistakes  and  disasters, 
and  through  an  experience  purchased  at  the  price  of  further  diffi- 
culties and  distress.  Such  were  his  general  views  at  the  close  of 
the  war.i 


* Letter  to  Hamilton,  Marcli  81,  1783.  Writings,  VIII.  409.  Letter  to  Lafa- 
yette, April  5,  1783.  Ibid.  411.  Address  to  the  States,  June  5,  1783.  Ibid.  439. 


THE  CONFEDERATION. 


137 


But  there  was  one  man  in  the  country  wlio  had  looked  more 
deeply  still  into  its  wants,  and  who  had  formed  in  his  enlarged 
and  coni])rehensive  mind  the  clearest  view  of  the  means  neces- 
sary to  meet  them,  even  before  the  Confederation  had  been  prac- 
tically tried.  A reorganization  of  the  government  had  engaged 
the  attention  of  Hamilton  as  early  as  1780;  and,  with  his  charac- 
teristic penetration  and  power,  he  saw  and  suggested  what  should 
be  the  remedy. 

lie  entertained  the  opinion  at  this  time,  as  he  had  always  en- 
tertained it,  that  the  discretionary  powers  originally  vested  in 
, Congress  for  the  safety  of  the  states,  and  implied  in  the  circum- 
stances and  objects  of  their  assembling,  were  fully  competent  to 
the  public  exigencies.  But  their  practice,  from  the  time  of  the 
Declaration  of  Independence  through  all  the  period  that  preceded 
the  establishment  of  the  Confederation,  had  accustomed  the  coun- 
try to  doubts  of  their  original  authority,  and  had  at  last  amounted 
to  a surrender  of  the  ground  from  which  they  might  have  exer- 
cised it.  No  remedy,  therefoi^e,  remained  applicable  to  the  cir- 
cumstances, and  capable  of  rescuing  the  affairs  of  the  country 
from  their  deplorable  situation,  but  to  vest  in  Congress,  expressly 
and  by  a direct  grant,  the  powers  necessary  to  constitute  an  effi- 
cient government  and  a solid,  coercive  union.  The  project  then 
before  the  country,  in  the  Articles  of  Confederation,  had  been  de- 
signed to  accomplish  what  the  revolutionary  government  had 
failed  to  do.  But  it  was  manifestly  destined  to  fail  in  its  turn ; 
for  it  left  an  uncontrollable  sovereignty  in  the  states,  capable  of 
defeating  the  beneficial  exercise  of  the  very  powers  which  it  un- 
dertook to  confer  upon  Congress.  It  made  the  army,  not  a unit, 
formed  and  organized  by  a central  and  supreme  authority,  and 
looking  up  to  that  authority  alone,  but  a collection  of  several  ar- 
mies, raised  by  the  several  states.  It  gave  to  the  state  legisla- 
tures the  effective  power  of  the  purse  by  withholding  all  certain 
revenues  from  Congress.  It  proposed  to  introduce  no  method 
and  energy  of  administration  ; and,  without  an  executive,  it  left 
every  detail  of  government  to  be  managed  by  a deliberative  body, 
whose  constitution  rendered  it  fit  for  none  but  legislative  functions. 
^ Under  these  circumstances,  it  was  Hamilton’s  advice,  before  the 
Confederation  took  effect,  that  Congress  should  plainly,  frankly, 
and  unanimously  confess  to  the  states  their  inability  to  carry  on 


138 


CONSTITUTIONAL  HISTORY. 


the  contest  with  Great  Britain  without  more  ample  powers  than 
those  which  they  had  for  some  time  exercised,  or  those  which  they 
could  exercise  under  the  Confederation ; and  that  a convention  of 
all  the  states  be  immediately  assembled,  with  full  authority  to 
agree  upon  a different  system.  lie  suggested  that  a complete 
sovereignty  should  be  vested  in  Congress,  except  as  to  that  part 
of  internal  police  which  relates  to  the  rights  of  property  and  life 
among  individuals,  and  to  raising  money  by  internal  taxes,  which 
he  admitted  should  be  regulated  by  the  state  legislatures.  But 
in  all  that  relates  to  war,  peace,  trade,  and  finance  he  maintained 
that  the  sovereignty  of  Congress  should  be  complete ; that  it 
should  have  the  entire  management  of  foreign  affairs,  and  of  rais-  \ 
ing  and  officering  armies  and  navies ; that  it  should  have  the  en-  j 
tire  regulation  of  trade,  determining  with  what  countries  it  should  ’ 
be  carried  on,  laying  prohibitions  and  duties,  and  granting  boun- 
ties and  premiums  ; that  it  should  have  certain  perpetual  revenues 
of  an  internal  character  in  specific  taxes ; that  it  should  be  au- 
thorized to  institute  admiralty  courts,  coin  money,  establish  banks, 
appropriate  funds,  and  make  alliances  offensive  and  defensive,  and  ' 
treaties  of  commerce.  He  recommended  also  that  Congress  should 
immediately  organize  executive  departments  of  foreign  affaifs, 
war,  marine,  finance,  and  trade,  with  great  officers  of  state  at  the 
head  of  each  of  them.’ 

^ Tliese  suggestions  were  nmcle  by  Hamilton  in  a letter  of  great  ability,  writ- 
ten in  1780,  while  he  was  still  in  tlie  army,  to  James  Duane,  a member  of  Con- 
gress from  New  York.  It  was  not  published  until  it  appeared  in  his  Life,  I.  284. 
At  its  close  he  says:  ‘‘I  am  persuaded  a solid  confederation,  a permanent  arm}", 
a reasonable  prospect  of  subsisting  it,  would  give  us  treble  consideration  in  Eu- 
rope, and  ]u-oduce  a peace  this  winter.  If  a convention  is  called,  the  minds  of  all 
the  states  and  the  people  ought  to  he  prepared  to  receive  its  determinations  hy  sensible 
and  popidar  icritings,  which  should  conform  to  the  views  of  Congress.  There 
are  epochs  in  human  affairs  when  novelty  useful.  If  a general  opinion  prevails 
that  the  old  way  is  bad,  whether  true  or  false,  and  this  obstructs  or  relaxes  the 
oj)erations  of  the  public  service,  a change  is  necessary,  if  it  be  but  for  the  sake 
of  change.  This  is  exactly  the  case  now.  ’Tis  an  universal  sentiment  that  our 
]n-esent  system  is  a bad  one,  and  that  things  do  not  go  right  on  this  account. 
The  measure  of  a convention  would  revive  the  hopes  of  the  people  and  give  a 
new  direction  to  their  passions,  which  may  be  improved  in  carrying  points  ol‘ 
substantial  utility.  The  Eastern  States  have  already  pointed  out  this  mode  to 
Congress:  they  ought  to  take  the  hint  and  anticipate  the  others.”  What  is  here 
said  of  the  action  of  the  Eastern  States  probably  refers,  not  to  any  suggestion 


THE  CONFEDERATION. 


139 


Hamilton’s  entry  into  Congress  hi~Ft82  marks  the  commence^ 
inent  of  his  public  elTorts  to  develop  the  idea  of  a general  govern- 
ment, whose  organs  should  act  directly  and  without  the  interven- 
tion of  any  state  machinery.  He  first  publicly  propounded  this 
idea  in  the  paper  which  he  prepared,  as  chairman  of  a committee, 
to  be  addressed  to  the  Legislature  of  Khode  Island,  in  answer  to 
the  objections  of  that  state  to  the  revenue  system  proposed  in 
1781.  One  of  these  objections  was  that  the  plan  proposed  to  in- 
troduce into  the  state  officers  unknown  and  unaccountable  to  the 
state  itself,  and,  therefore,  that  it  was  against  its  constitution. 
From  the  prevalence  of  this  notion  ^ve  may  see  how  difficult  it 
\vas  to  create  the  idea  of  a national  sovereignty  that  would  con- 
sist with  the  sovereignty  of  the  states,  and  would  work  in  its  ap- 
])ropriate  sphere  harmoniously  with  the  state  institutions,  because 
directed  to  a different  class  of  objects.  The  nature  of  a federal 
constitution  was  little  understood.  It  was  apparent  that  the  ex- 
ercise of  its  powers  must  affect  the  internal  police  of  its  component 
members  to  some  extent;  but  it  was  not  jw ell  understood  that 
political  sovereignty  is  capable  of  partition,  according  to  the  clw- 
acter  of  its  subjects,  so  that  powers  of  one  class  may  be  imparted 
to  a federal,  and  powers  of  another  class  remain  in  a state  consti- 
tution without  destroying  the  sovereignty  of  the  latter.  Hamilton 
presented  this  view,  and  at  the  same  time  pointed  out  that,  unless 
the  constitution  of  a state  expressly  prohibited  its  legislature  from 
granting  to  the  federal  government  new  power  to  appoint  officers 
for  a special  purpose,  to  act  within  the  state  itself,  it  was  compe- 
tent to  the  legislative  authority  of  the  state  to  communicate  such 
power,  just  as  it  was  competent  to  it  originally  to  enter  into  the 
Confederation.'  

of  a convention  to  revise  the  powers  of  tlie  general  government,  but  to  a con- 
vention of  committees  of  the  Eastern  States,  which  first  assembled  at  Hartford 
and  afterwards  at  Boston,  in  November,  1779,  and  in  August,  1780, /cr  regulat- 
ing the  prices  of  commodities.  Journals  of  Congress,  V.  406;  VI.  271,  831,  392. 
But  tlie  writer  may  have  had  in  his  mind  the  convention  winch  had  just  assem- 
bled in  Massachusetts  to  form  the  constitution  of  that  state.  I am  aware  of 
no  public  proposal,  as  early  as  1780,  of  a general  convention  to  remodel  the 
Confederacy. 

^ “ It  is  not  to  be  presumed,”  he  said,  “ that  the  constitution  of  any  state  means 
to  define  and  fix  the  precise  numbers  and  descriptions  of  all  officers  to  be  permit- 
ted in  the  state,  excluding  the  creation  of  any  new  ones,  whatever  might  be  tlie 


140 


CONSTITUTIONAL  HISTORY. 


In  the  same  paper  also  he  urged  the  necessity  of  vesting  the 
appointment  of  the  collectors  of  the  proposed  revenue  in  the  gen- 
eral government,  because  it  was  designed  as  a security  to  credit- 


necessity  derived  from  that  variety  of  circumstances  incident  to  all  political  in- 
stitutions. The  legislature  must  always  have  a discretionary  power  of  appoint- 
ing officers  not  expressly  known  to  the  constitution,  and  this  power  will  include 
that  of  authorizing  the  federal  government  to  make  the  appointments  in  cases 
where  the  general  welfare  may  require  it.  The  denial  of  this  would  prove  too  much ; 
to  wit,  that  the  power  given  by  the  Confederation  to  Congress  to  appoint  all 
officers  in  the  post-office  was  illegal  and  unconstitutional.  The  doctrine  ad- 
vanced by  Rhode  Island  would  perha[)s  prove  also  that  the  federal  government 
ought  to  have  the  appointment  of  no  internal  officers  whatever;  a position  that 
rvould  defeat  all  the  provisions  of  the  Confederation  and  all  the  purposes  of  the 
Union.  The  truth  is  that  no  federal  constitution  can  exist  without  ])owers  that 
in  their  exercise  affect  the  internal  police  of  the  component  members.  It  is 
equally  true  that  no  government  can  exist  without  a right  to  appoint  officers  for 
those  purposes  which  proceed  from  and  concentre  in  itself;  and,  therefore,  the 
Confederation  has  expressly  declared  that  Congress  shall  have  authority  to  ap- 
point all  such  ‘ civil  officers  as  may  be  necessary  for  managing  the  general  affairs 
of  the  United  States  under  their  direction.’  All  that  can  be  required  is  that  the 
federal  government  confine  its  appointments  to  such  as  it  is  empowered  to  make 
by  the  original  act  of  union,  or  by  the  subsequent  consent  of  the  parties;  unless 
there  should  be  express  words  of  exclusion  in  the  constitution  of  a state,  there 
can  be  no  reason  to  doubt  that  it  is  within  the  compass  of  legislative  discretion 
to  communicate  that  authority.  The  propriety  of  doing  it  upon  the  present  oc- 
casion is  founded  on  substantial  reasons.  The  measure  proposed  is  a measure 
of  necessity^  Repeated  experiments  have  shown  that  the  revenue  to  be  raised 
within  these  states  is  altogether  inadequate  to  the  public  wants.  The  deficiency 
can  only  be  supplied  by  loans.  Our  applications  to  the  foreign  powers  on 
whose  friendship  we  depend  have  had  a success  far  short  of  our  necessities. 
The  next  resource  is  to  borrow  from  individuals.  These  will  neither  be  actuated 
by  generosity  nor  reasons  of  state.  ’Tis  to  their  interest  alone  we  must  appeal. 
To  conciliate  this,  we  must  not  only  stipulate  a proper  compensation  for  what 
they  lend,  but  we  must  give  security  for  the  performance.  We  must  pledo-e  an 
ascertained  fund,  simple  and  productive  in  its  nature,  general  in  its  principle, 
and  at  the  disposal  of  a single  will.  Tiiere  can  be  little  confidence  in  a security 
under  the  constant  revisal  of  thirteen  different  deliberatives.  It  must,  once  for 
all,  be  defined  and  established  on  the  faith  of  the  states,  solemnly  pledged  to 
each  other,  and  not  revocable  by  any  without  a breach  of  the  general  compact. 
’Tis  by  such  expedients  that  nations  whose  resources  are  understood,  whose  rep- 
utations and  governments  are  erected  on  the  foundation  of  ages,  are  enabled  to 
obtain  a solid  and  extensive  credit.  Would  it  be  reasonable  in  us  to  hope  for 
more  easy  terms  who  have  so  recently  assumed  our  rank  among  the  nations  ? Is 


THE  CONFEDERATION. 


141 


ors,  and  must,  therefore,  be  general  in  its  principle  and  dependent 
on  a single  will,  and  not  on  thirteen  different  authorities.  This 
was  the  earliest  suggestion  of  the  principle  that,  in  exercising  its 
powers,  the  federal  government  ought  to  act  directly,  through 
agents  of  its  own  appointment,  and  tlms  be  independent  of  state 
negligence  or  control.  When  the  debate  came  on  in  January, 
1783,  upon  the  new  project  of  a revenue  system,  he  again  urged 
the  necessity  of  strengthening  the  federal  government  through 
the  influence  of  officers  deriving  their  appointments  directly  from 
Congress  — a suggestion  that  was  received  at  the  moment  with 
pleasure  by  the  opponents  of  the  scheme,  because  it  seemed  to 
disclose  a motive  calculated  to  touch  the  jealousy  rather  than  to 
propitiate  the  favor  of  the  states.  But  the  temporary  expedients 
of  the  moment  always  pass  away.  The  great  ideas  of  a statesman 
like  Hamilton,  earnestly  bent  on  the  discovery  and  inculcation 
of  truth,  do  not  pass  away.  Wiser  than  those  by  whom  he  was 
surrounded,  with  a deeper  knowledge  of  the  science  of  government 
and  the  wants  of  the  country  than  most  of  them,  and  constantly 
enunciating  principles  which  extended  far  beyond  the  temporizing 

it  not  to  be  expected  that  individuals  will  be  cautious  in  lending  their  money 
to  a people  in  our  circumstances,  and  that  they  will  at  least  req^uire  the  best  se- 
curity we  can  give?  We  have  an  enemy  vigilant,  intriguing,  well  acquainted 
with  our  defects  and  embarrassments.  We  may  expect  that  he  Avill  make  every 
effort  to  instil  diffidences  into  individuals,  and  in  the  present  posture  of  our 
internal  affairs  lie  will  have  too  plausible  ground  on  which  to  tread.  Our  neces- 
sities have  obliged  us  to  embrace  measures,  witli  respect  to  our  public  credit, 
calculated  to  inspire  distrust.  The  prepossessions  on  this  article  must  naturally 
be  against  us,  and  it  is  therefore  indispensable  we  should  endeavor  to  remove 
tliem  by  such  means  as  will  be  the  most  obvious  and  striking.  It  was  with 
these  views  Congress  determined  on  a general  fund  ; and  the  one  they  have  recom- 
mended must,  upon  a thorough  examination,  appear  to  have  fewer  inconven- 
iences than  any  other.  It  has  been  remarked,  as  an  essential  part  of  the  plan, 
that  the  fund  should  depend  on  a single  will.  This  will  not  be  the  case  unless 
the  collection,  as  well  as  the  appropriation,  is  under  the  control  of  the  United 
States;  for  it  is  evident  that,  after  the  duty  is  agreed  upon,  it  may,  in  a great 
measure,  be  defeated  by  an  ineffectual  mode  of  levying  it.  The  United  States 
have  a common  interest  in  a uniform  and  equally  energetic  collection ; and  not 
only  policy,  but  justice  to  all  the  parts  of  the  Union,  designates  the  utility  of 
lodging  the  power  of  making  it  where  the  interest  is  common.  Without  this, 
it  might  in  reality  operate  as  a very  unequal  tax.”  Journals  of  Congress,  VIII. 
153. 


142 


CONSTITUTIONAL  HISTORY. 


policy  of  the  hour,  the  smiles  of  his  opponents  only  prove  to  pos- 
terity how  far  he  was  in  advance  of  them.* 

The  efforts  of  Hamilton  to  effect  a change  in  the  rule  of  the 
Confederation  as  to  the  ratio  of  contribution  by  the  states  to  the 
treasury  of  the  Union  also  evince  both  the  defects  of  the  existing 
government  and  the  foresight  with  which  he  would  have  obviated 
them,  if  he  could  have  been  sustained.  The  rule  of  the  Confeder- 
ation required  that  the  general  treasury  should  be  supplied  by  the 
several  states  in  proportion  to  the  value  of  all  lands  within  each 
state,  granted  or  surveyed,  with  the  buildings  and  improvements 
thereon,  to  be  estimated  according  to  such  mode  as  Congress 
should  from  time  to  time  direct  and  appoint;  the  taxes  for  paying 
such  proportion  to  be  laid  and  levied  by  the  state  legislatures 
within  the  time  fixed  by  Congress.  But  Congress  had  never  ap- 
pointed any  mode  of  ascertaining  the  valuation  of  lands  within 
the  states.  The  first  requisition  called  for  after  the  Confederation 
took  effect  was  apportioned  among  the  several  states  without  any 
valuation,  provision  being  made  by  which  each  state  was  to  receive 
interest  on  its  payments,  as  far  as  they  exceeded  what  might  after- 
wards be  ascertained  to  be  its  just  proportion,  when  the  valuation 
should  have  been  made."  At  the  outset,  therefore,  a practical  in- 
equality was  established,  which  gave  rise  to  complaints  and  jeal- 
ousies between  the  states,  and  increased  the  disposition  to  with- 
hold compliance  with  the  requisitions.  The  dangerous  crisis  in 
the  internal  affairs  of  the  countiy  which  attended  the  approach 
of  peace  had  arrived  in  the  winter  and  spring  of  1783,  and  noth- 
ing had  ever  been  done  to  carry  out  the  rule  of  the  Confederation 


’ He  said,  as  an  additional  reason  for  the  revenue  being  collected  by  officers 
under  the  appointment  of  Congress,  that,  “ as  the  energy  of  the  federal  government 
was  evidently  short  of  the  degree  necessary  for  pervading  and  uniting  the  states, 
it  was  expedient  to  introduce  the  influence  of  officers  deriving  their  emoluments 
from,  and  consequently  interested  in  supporting,  the  power  of  Congress.”  Upon 
this  Mr.  Madison  observes:  “This  remark  was  imprudent,  and  injurious  to  the 
cause  it  Avas  intended  to  serve.  This  influence  was  the  very  source  of  jealousy 
whicli  rendered  the  states  averse  to  a revenue  under  collection,  as  well  as  appro- 
priation, of  Congress.  All  the  members  of  Congress  who  concurred  in  any  de- 
gree with  the  states  in  this  jealousy  smiled  at  the  disclosure.  Mr.  Bland,  and 
still  more  Mr.  Lee,  avIio  were  of  this  numb(?r,  took  notice,  in  private  conversa- 
tion, that  ]\Ir.  Hamilton  had  let  out  the  secret.”  Elliot’s  Debates,  I.  35. 

* March  18  and  23,  1781.  Journals,  VII.  5C,  67. 


THE  CONFEDERATION. 


143 


by  fixing  upon  a mode  of  valuation.  When  the  discussion  of 
the  new  measures  for  sustaining  the  public  credit  came  on,  three 
courses  presented  themselves  with  regard  to  this  part  of  the  sub- 
ject : either,  first,  to  change  the  principle  of  the  Confederation 
entirely ; or,  secondly,  to  carry  it  out  by  fixing  a mode  of  valua- 
tion at  once  ; or,  thirdly,  to  postpone  the  attempt  to  carry  it  out 
until  a better  mode  could  be  devised  than  the  existing  state  of  the 
country  then  permitted. 

Hamilton’s  preference  was  for  the  first  of  these  courses,  as  the 
one  that  admitted  of  the  application  of  those  principles  of  gov- 
ernment which  he  was  endeavoring  to  introduce  into  the  federal 
system ; for  he  saw  that  in  the  theory  of  the  Confederation  there 
Avas  an  inherent  inequality  which  Avould  constantly  increase  in 
practice,  and  Avhich  must  either  be  removed  or  destroy  the  Union, 
He  maintained  that,  where  there  are  considerable  differences  in\, 
the  relative  Avealth  of  different  communities,  the  proportion  of; 
those  differences  can  never  be  ascertained  by  any  common  meas-^ 
ure  ; that  the  actual  Avealth  of  a country,  or  its  ability  to  pay 
taxes,  depends  on  an  endless  variety  of  circumstances,  physical 
and  moral,  and  cannot  be  measured  by  any  one  general  represent- 
ative, as  land  or  nmnbers  / and  therefore  that  the  assumption  of 
such  a general  representative,  by  Avhate\"er  mode  its  local  value 
might  be  ascertained,  Avould  Avork  inevitable  inequality.  In  his 
vieAv,  the  only  possible  Avay  of  making  the  states  contribute  to  the 
general  treasury  in  an  equal  proportion  to  their  means  Avas  by 
v^eneral  taxes  imposed  under  continental  authority ; and  it  is  a 
striking  proof  of  the  comprehensive  sagacity  AAuth  Avhich  he 
looked  forAA^ard,  that,  Avhile  he  admitted  that  this  mode  Avould, 
for  a time,  produce  material  inequalities,  he  foresaAv  that  bal- 
ancing of  interests  Avhich  would  arise  in  a continental  legislation, 
and  Avould  relieve  the  hardships  of  one  tax  in  a particular  state 
by  the  lighter  pressure  of  another  bearing  Avith  proportional 
Aveight  in  some  other  part  of  the  Confederacy.' 

Accordingly,  after  an  attempt  to  postpone  the  consideration 
of  a mode  of  carrying  out  the  Confederation,  he  made  an  effort  to 
have  its  principle  changed,  by  substituting  specific  taxes  on  land 
and  houses,  to  be  collected  and  appropriated,  as  well  as  the  duties, 


Life  of  Hamilton,  II.  50-57. 


144 


CONSTITUTIONAL  HISTORY. 


under  the  authority  of  the  United  States,  by  officers  to  be  nomi- 
nated by  Congress,  and  approved  by  the  state  in  which  they  were 
to  exercise  their  functions,  but  accountable  to  and  removable  by 
Congress.*  These  ideas,  however,  as  he  himself  saw,  were  not 
agreeable  to  the  spirit  of  the  times,  and  his  plan  was  rejected. 
After  many  fruitless  projects  had  been  suggested  and  discussed, 
for  making  the  valuation  required  by  the  Confederation — some 
of  them  proposing  that  it  should  be  done  by  commissioners  ap- 
pointed by  the  United  States,  and  some  by  commissioners  ap- 
pointed by  the  states — it  was  determined  to  propose  no  other 
change  in  the  principle  of  making  requisitions  on  the  states 
than  to  substitute  population  in  the  place  of  land  as  the  rule  of 
proportion.'' 

AX  Equally  extensive  and  important  were  his  views  on  the  subject 
of  a peace  establishment,  for  which  he  saw  the  necessity  of  pro- 
viding, as  the  time  approached  when  the  Confederation  would 
necessarily  be  tested  as  a government  for  the  purposes  of  peace. 
To  adapt  a constitution  wffiose  principal  powers  were  originallv 
designed  to  be  exercised  in  a state  of  war  to  a state  of  peace,  for 

^ March  20, 1783.  Journals,  VIII.  157-159. 

^ The  census  was  to  be  of“tlie  whole  number  of  wliite  and  other  free  citizens 
and  inhabitants,  of  every  age,  sex,  and  condition,  including  those  bound  to  servi- 
tude for  a term  of  years,  and  three  fiftlis  of  all  other  persons  not  comprehended 
in  the  foregoing  description,  except  Indians,  not  paying  taxes,  in  each  state; 
which  number  shall  be  triennially  taken  and  transmitted  to  the  United  States  in 
Congress  assembled,  in  such  mode  as  they  shall  direct  and  appoint.”  Wlien  tlie 
Articles  of  Confederation  were  framed  and  adoj)ted  in  Congress,  a valuation  of 
land  as  the  rule  of  proportion  was  adopted  instead  of  numliers  of  inhabitants,  in 
consequence  of  the  impossibility  of  compromising  tlie  different  ideas  of  the  East- 
ern and  Southern  States  as  to  the  rate  at  which  slaves  should  be  counted ; the 
Eastern  States,  of  course,  wishing  to  have  them  counted  in  a near  ratio  to  the 
whites,  and  the  Southern  states  wishing  to  diminish  that  ratio.  Numbers 
wmuld  have  been  preferred  by  tlie  Southern  States  to  land,  if  half  their  slaves 
only  could  have  been  taken ; but  the  Eastern  States  were  opposed  to  this  esti- 
mate (Elliot’s  Debates,  V.  79).  In  1783,  when  it  was  proposed  to  change  the 
rule  of  proportion  from  land  to  numbers,  the  first  compromise  suggested  (by  Mr. 
Wolcott,  of  Connecticut)  was  to  include  only  such  slaves  as  were  between  the 
ages  of  sixteen  and  sixty;  this  was  found  to  be  impracticable;  and  it  was  agreed 
on  all  sides  that,  instead  of  fixing  the  proportion  by  ages,  it  would  be  best  to  fix 
it  in  absolute  numbers,  and  the  rate  of  three  fifths  was  agreed  upon.  Ibid., 
81,  82. 


T II  E C O N F E I)  E II  A T I O N. 


U5 


wliich  it  possessed  but  few  powers,  and  those  not  clearly  defined, 
was  a ])rol)leni  in  the  science  of  government  of  a novel  character. 
It  might  ])rove  to  be  an  impossible  task;  for  on  applying  the 
constitutional  })rovisions  to  the  real  wants  and  necessities  of  the 
country,  it  might  turn  out  that  the  Confederation  was  in  some  re- 
sjiects  destitute  of  the  capacity  to  provide  for  them ; and  in  un- 
dertaking to  carry  out  its  actual  and  sutficient  powers,  which  had 
never  hitherto  been  exercised,  opposition  might  spring  up,  from 
state  jealousy  and  local  policy,  Avhich,  in  the  real  weakness  of  the 
federal  government,  would  be  as  effectual  a barrier  as  the  want 
of  constitutional  authority.  Still  the  effort  was  to  be  made  ; and 
Hamilton  approached  the  subject  with  all  the  sagacity  and  states- 
manship for  which  he  was  so  distinguished. 

He  saw  that  the  Confederation  contained  provisions  which 
looked  to  the  continuance  of  the  Union  after  the  war  had  termi- 
nated, and  that  these  provisions  required  practical  application, 
through  a machinery  which  had  never  been  even  framed.  The 
Articles  of  Confederation  vested  in  Congress  the  exclusive  man- 
agement of  foreign  relations ; but  the  department  of  foreign  affairs 
had  never  been  properly  organized.  They  also  gave  to  Congress 
the  exclusive  regulation  of  trade  and  intercourse  with  the  Indian 
nations ; but  no  department  of  Indian  affairs  had  been  established 
with  properly  defined  powers  and  duties.  Nothing  had  been  done 
to  carry  out  the  provision  for  fixing  the  standard  of  weights  and 
measures  throughout  the  United  States,  or  to  regulate  the  alloy 
and  value  of  coin.  Above  all,  the  great  question  of  means,  mili- 
tary and  naval,  for  the  external  and  internal  defence  of  the  coun- 
try during  peace,  for  the  preservation  of  tranquillity,  the  protec- 
tion of  commerce,  the  fulfilment  of  treaty  stipulations,  and  the 
maintenance  of  the' authority  of  the  United  States,  had  not  been 
so  much  as  touched.  To  regulate  these  important  subjects  was 
the  design  of  a committee,  at  the  head  of  which  Hamilton  was 
' placed ; and  his  earliest  attention  was  directed  to  the  most  serious 
and  difficult  of  them — the  provision  for  a peace  establishment  of 
military  and  naval  forces.’ 

The  question  whether  the  United  States  could  constitutionally 
maintain  an  army  and  navy,  in  time  of  peace,  was,  under  the  Ar- 


I.— 10 


' Life  of  Hamilton,  II.  204-212. 


146 


CONSTITUTIONAL  HISTORY. 

tides  of  Confederation,  not  free  from  difficulty ; but  it  became  of 
imminent  practical  importance  under  the  treaty  of  peace.  That 
treaty  provided  for  an  immediate  withdrawal  of  the  British  forces 
from  all  posts  and  fortifications  within  the  United  States;  and  it 
became  at  once  an  important  question  whether  these  posts  and 
fortifications— especially  those  within  certain  districts,  the  juris- 
diction and  property  of  which  had  not  been  constitutionally  as- 
certained—should  be  garrisoned  by  troops  of  the  United  States, 
or  of  the  states  within  which  they  Avere  situated.  There  Avas  also 
territory  appertaining  to  the  United  States  not  Avithin  the  original 
claim  of  the  United  States.  The  Avhole  of  the  AA’^estern  frontier 
required  defence.  The  navigation  of  the  Mississippi  and  the  lakes, 
and  the  rights  of  the  fisheries  and  of  foreign  commerce,  all  be- 
longing to  the  United  States,  and  depending  on  the  laAvs  of  na- 
tions and  treaty  stipulations,  demanded  the  joint  protection  of 
the  Union,  and  could  not  Avith  propriety  be  left  to  the  separate 
establishments  of  the  states. 

But  the  Articles  of  Confederation  contained  no  express  pro- 
Ausion  for  the  establishment  and  maintenance  of  any  military  and 
naAml  forces  during  peace.  They  empoAvered  the  United  States, 
generally  (and  Avithout  mention  of  peace  or  Avar),  to  build  and 
equip  a na\w,  and  to  agree  upon  the  number  of  land  forces  to  be 
raised,  and  to  call  upon  the  states  to  furnish  their  quotas.  But 
they  also  declared  that  no  vessels  of  Avar  should  be  kept  up  by 
any  state  in  time  of  peace,  except  such  number  only  as  should  be 
deemed  necessary  by  Congress  for  the  defence  of  such  state  or  its 
trade ; and  that  no  body  of  forces  should  be  kept  up  by  any  state 
jn  time  of  peace,  except  such  number  only  as  Congress  should 
deem  requisite  to  garrison  the  posts  necessary  for  the  defence  of 
such  state.  This  provision  might  be  construed  to  imply  that,  in 
time  of  peace,  the  general  defence  was  to  be  provided  for  by  the 
forces  of  each  state,  and  in  time  of  Avar  by  those  of  the  Union. 
But  it  Avas  the  opinion  of  Hamilton  that  the  restrictions  on  the 
poAvers  of  the  states,  Avith  regard  to  maintaining  forces  during 
peace,  could  not  Avith  propriety  be  said  to  contain  any  directions 
to  the  United  States,  or  to  contraA^ene  the  positive  poAver  A^ested 
in  the  latter  to  raise  both  sea  and  land  forces,  Avithout  mention  of 
peace  or  AA^ar.  lie  strengthened  this  AueAv  by  the  capital  incon- 
venience of  the  contrary  construction,  and  by  the  manifest  neces- 


THE  CONFEDEH  ATION. 


147 


sities  of  the  country,  which  could  only  be  provided  for  by  the 
power  of  the  Union.  If  the  United  States  could  have  neither 
army  nor  navy  until  war  had  been  declared,  they  would  be  obliged 
to  begin  to  create  both  at  the  very  moment  when  both  were 
needed  in  actual  hostilities ; and  if  the  states  were  to  be  intrusted 
with  the  defence  of  the  country  in  time  of  peace,  that  defence 
would  be  left  to  thirteen  different  armies  and  navies,  under  the 
direction  of  as  many  different  governments.' 

lie  contemplated,  therefore,  the  formation  of  a peace  estab- 
lishment, to  consist  of  certain  corps  of  infantry,  artillery,  cav- 
alry,  engineers,  and  dragoons a general  survey,  preparatory  to 
the  adoption  of  a general  system  of  land  fortifications  ; the  estab- 
lishment of  arsenals  and  magazines,  and  the  erection  of  founder- 
ies  and  manufactories  of  arms.  lie  advised  the  establishment  of 
ports  and  maritime  fortifications,  and  the  formation  and  construc- 
tion of  a navy;  and  his  report  embraced  also  a plan  for  classing 
and  disciplining  the  militia.' 

* Life  of  Hamilton,  II.  204-212. 

2 He  proposed  that  the  states  should  transfer  to  Congress  the  right  to  appoint 
the  regimental  officers,  and  tliat  the  men  should  be  enlisted  under  Continental 
direction. 

2 That  the  subject  of  a peace  establishment  originated  with  Hamilton  is  cer- 
tain, from  the  fact  that  early  in  April,  soon  after  the  appointment  of  tlie  commit- 
tee, he  wrote  to  Washington,  wishing  to  know  his  sentiments  at  large  on  such 
institutions  of  every  kind  for  the  interior  defence  of  the  states  as  miglit  be  best 
adapted  to  their  circumstances  (Writings  of  Washington,  VHI.  417).  Wash- 
ington wrote  to  all  the  principal  officers  of  the  army  then  in  camp  for  their 
views,  and  from  the  memoirs  which  they  presented  to  him  an  important  docu- 
ment was  compiled,  which  was  forwarded  by  liim  to  the  committee  of  Congress. 
In  one  of  these  memoirs  Colonel  Pickering  suggested  the  establisliment  of  a mil- 
itary academy  at  West  Point.  “ If  any  tiling,”  lie  said,  “like  a military  academy 
in  America  be  practicable  at  this  time,  it  must  be  grounded  on  the  jiermament 
military  establishment  of  our  frontier  posts  and  arsenals,  and  the  wants  of  the 
states,  separately,  of  officers  to  command  the  defences  of  their  sea-coasts.  On 
this  principle  it  might  be  expedient  to  establish  a military  school,  or  academ}^ 
at  West  Point.  And  that  a competent  number  of  young  gentlemen  might  be 
induced  to  become  students,  it  might  be  made  a rule  that  vacancies  in  the  stand- 
ing regiments  should  be  supplied  from  thence;  those  few  instances  excepted 
where  it  would  be  just  to  promote  a very  meritorious  sergeant.  For  this  end, 
the  number  which  shall  be  judged  requisite  to  supply  vacancies  in  the  standing 
regiment  might  be  fixed,  and  that  of  the  students,  who  are  admitted  with  an  e' ”- 


148 


CONSTITUTIONAL  HISTORY. 


In  all  this  design,  Hamilton  pursued  the  purpose,  which  he  had 
long  entertained,  of  strengthening  and  consolidating  the  Union,  and 
guarding  against  its  dissolution,  by  providing  the  means  necessary 
for  its  defence.  Federal  rather  than  state  provision  for  the  de- 
fence of  every  part  of  the  Confederacy,  in  peace  as  well  as  in  war, 
seemed  to  him  essential.  He  thought  that  the  general  govern- 
ment should  have  exclusively  the  power  of  the  sword,  and  that 
each  state  should  have  no  forces  but  its  militia.*  But  his  great 


ception  of  filling  them,  limited  accordingly.  They  might  be  allowed  subsistence 
at  the  public  expense.  If  any  otlier  youth  desired  to  pursue  the  same  studies  at 
the  military  academy,  they  might  be  admitted,  only  subsisting  tliemselves.  Those 
students  sliould  be  instructed  in  what  is  usually  called  military  discipline,  tac- 
tics, and  the  theory  and  practice  of  fortification  and  gunnery.  The  comman- 
dant and  one  or  two  other  officers  of  the  standing  regiment,  and  the  engineers, 
making  West  Point  their  general  residence,  w’ould  be  the  masters  of  the  acad- 
emy ; and  the  inspector-general  superintend  the  whole  ” (Ibid.).  The  subject 
of  a peace  establishment  was  made  one  of  the  four  principal  topics  on  which 
Washington  afterwards  enlarged  in  his  circular  letter  to  the  states  in  June  ; but 
his  suggestions  related  chiefly  to  a uniform  organization  of  the  militia  through- 
out the  states.  He  subsequently  had  several  conferences  with  the  committee 
of  Congress  on  the  whole  subject,  but  nothing  was  done.  Vide  note,  infra. 

^ Life  of  Hamilton,  II.  214-219.  The  state  of  New  York  precipitated  the 
constitutional  question,  by  demanding  that  the  western  posts  within  her  limits 
should  be  garrisoned  by  troops  of  her  own,  and  by  instructing  her  delegates  in 
Congress  to  obtain  a declaration,  conformably  to  the  sixth  article  of  the  Confed- 
eration, of  the  number  of  troops  necessary  for  that  purpose.  Hamilton  forbore 
to  press  this  application  while  the  general  subject  of  a peace  establishment  was 
under  consideration.  But  the  doubts  that  arose  as  to  the  constitutional  power 
of  Congress  to  raise  an  army  for  the  purpose  of  peace,  and  the  urgency  of  the 
case,  made  it  necessary  to  adoj)t  a temporary  measure  with  regard  to  the  frontier 
posts,  and  to  direct  the  commander-in-chief  to  garrison  them  with  a part  of  the 
troops  of  the  United  States  which  had  enlisted  for  three  years.  This  was  ordered 
on  the  12th  of  May.  Soon  after,  the  mutiny  of  a portion  of  the  new  levies  of  the 
Pennsylvania  line  occurred,  which  drove  Congress  from  Philadelphia  to  Prince- 
ton, on  the  21st  of  June.  At  Princeton  they  remained  during  the  residue  of  the 
year,  but  with  diminished  numbers  and  often  without  a constitutional  quorum 
of  states.  In  September,  W^ashington  wrote  to  Governor  Clinton:  “Congress 
have  come  to  no  determination  yet  respecting  a peace  establishment,  nor  am  I 
able  to  say  when  they  will.  I have  lately  had  a conference  with  a committee 
on  this  subject,  and  have  reiterated  my  former  opinions;  but  it  appears  to  me 
that  there  is  not  a sufficient  representation  to  discuss  great  national  points;  nor 
do  I believe  there  will  be,  while  that  honorable  body  continue  their  sessions  at 


THE  CONFEDERATION. 


149 


plans  were  arrested,  partly  in  consequence  of  the  doubts  enter- 
tained on  the  point  of  constitutional  power,  and  partly  by  reason 
of  the  great  falling  off  of  the  attendance  of  members  in  Congress. 
At  the  very  time  when  this  important  subject  was  under  consid- 
eration, Congress  were  driven  from  Philadelphia,  by  the  mutiny  of 
a handf id  of  men,  whom  they  could  not  curb  at  the  moment  with- 
out the  aid  of  the  local  authorities,  and  that  aid  was  not  promptly 
and  efficiently  given.' 


this  place.  The  want  of  accommodation,  added  to  a disinclination  in  the  Southern 
delegates  to  be  fiirther  removed  than  they  formerly  were  from  the  centre  of  the 
empire,  and  an  aversion  in  the  others  to  give  up  what  they  conceive  to  be  a 
point  gained  by  the  late  retreat  to  this  place,  keep  matters  in  an  awkward 
situation,  to  the  very  great  interruption  of  national  concerns.  Seven  states,  it 
seems,  by  the  Articles  of  Confederation,  must  agree,  before  any  place  can  be  fixed 
upon  for  the  seat  of  the  federal  government  | and  seven  states,  it  is  said,  never 
will  agree;  consequently,  as  Congress  came  here,  here  they  are  to  remain,  to  the 
dissatisfixetion  of  the  majority  and  a great  let  to  business,  having  none  of  the  pub- 
lic offices  about  them,  nor  any  place  to  accommodate  them,  if  they  were  brought 
up ; and  the  members,  from  this  or  some  other  cause,  are  eternally  absent,” 

’ Mr.  Madison  has  given  the  following  account  of  this  occurrence;  “On  the 
19th  of  June,  Congress  received  information  from  the  Executive  Council  of 
Pennsylvania  that  eighty  soldiers,  who  would  probably  be  followed  by  others, 
were  on  the  way  from  Lancaster  to  Philadelphia,  in  spite  of  the  expostulations 
of  their  officers,  declaring  that  they  would  proceed  to  the  seat  of  Congress  and 
demand  justice,  and  intimating  designs  against  the  bank.  A committee,  of 
which  Colonel  Hamilton  was  chairman,  was  appointed  to  confer  with  the  execu- 
tive of  Pennsylvania,  and  to  take  such  measures  as  they  should  find  necessary. 
After  a conference,  the  committee  reported  that  it  was.the  opinion  of  the  execu- 
tive that  the  militia  of  Philadelphia  would  probably  not  be  willing  to  take  arms 
before  they  should  be  provoked  by  some  actual  outrage ; that  it  would  hazard 
the  authority  of  government  to  make  the  attempt;  and  that  it  would  be 
necessary  todet  the  soldiers  come  into  the  city,  if  the  officers  who  had  gone  out 
to  meet  them  could  not  stop  them.  The  next  day  the  soldiers  arrived  in  the 
city,  led  by  their  sergeants,  and  professing  to  have  no  other  object  than  to  obtain 
a settlement  of  accounts,  which  they  supposed  they  had  a better  chance  for  at 
Philadelphia  than  at  Lancaster.  On  the  21st  they  were  drawn  up  in  the  street 
before  the  State  House,  where  Congress  were  assembled.  The  executive  council 
of  the  state,  sitting  under  the  same  roof,  was  called  on  for  the  proper  interpo- 
sition. The  president  of  the  state  (Dickinson)  came  in  and  explained  the  difli- 
culty  of  bringing  out  the  militia  of  the  place  for  the  suppression  of  the  mutiny. 
He  thought  that,  without  some  outrages  on  persons  or  property,  the  militia  could 
not  be  relied  on.  General  St.  Clair,  then  in  Philadelphia,  was  sent  for,  and 


150 


CONSTITUTIONAL  HISTORY. 

Convinced,  at  length,  that  no  temporary  expedients  would  meet 
the  wants  of  the  country,  and  that  a radical  reform  of  its  consti- 
tution could  alone  preserve  the  Union  from  dissolution,  Hamilton 
surveyed  the  Confederation  in  all  its  parts,  and  determined  to  lay 
before  the  country  its  deep  defects,  with  a view  to  the  establish- 
ment of  a government  with  proper  departments  and  adequate 
powers.  In  this  examination  he  applied  to  the  Confederation  the 
approved  maxims  of  free  government,  which  had  been  made  fa- 
miliar in  the  formation  of  the  state  constitutions,  and  which  point 
to  the  distinct  separation  of  the  legislative,  executive,  and  judicial 
functions.  The  Confederation  vested  all  these  powers  in  a single 
thus  violated  the  principles  on  which  the  government  of 
nearly  every  state  in  the  Union  was  founded.  It  had  no  federal 
jiidicatuie,  to  take  cognizance  of  matters  of  general  concern,  and 
especially  of  those  in  which  foreign  nations  and  their  subjects  were 
concerned ; and  thus  national  treaties,  the  national  faith,  and  the 
public  tranquillity  were  exposed  to  the  conflict  of  local  regulations 
against  the  powers  vested  in  the  Union.  It  gave  to  Congress  the 
power  of  ascertaining  and  appropriating  the  sums  necessary  for  the 
public  expenses,  but  withheld  all  control  over  either  the  imposition 
or  collection  of  the  taxes  by  which  they  were  to  be  raised,  and 


desired  to  use  liis  interposition,  in  order  to  prevail  on  the  troops  to  return  to  tlie 
barracks.  But  his  report  gave  no  encouragement.  In  this  posture  of  tilings  it 
was  proposed  by  Mr.  Izard  that  Congress  should  adjourn.  Colonel  Hamilton 
proposed  that  General  St.  Clair,  in  concert  with  the  executive  council  of  the 
state,  should  take  order  for  terminating  the  mutiny.  Mr.  Reed  moved  that  the 
general  should  endeavor  to  withdraw  the  mutineers,  by  assuring  them  of  the 
disposition  of  Congress  to  do  them  justice.  Nothing,  however,  was  done.  The 
soldiers  remained  in  their  position,  occasionally  uttering  offensive  words  and 
pointing  their  muskets  at  the  wiixMws  of  the  hall  of  Congress.  At  the  usual 
hour  of  adjournment  the  members  Mmnt  out,  without  obstruction  ; and  the 
soldiers  retired  to  their  barracks.  In  the  evening  Congress  reassembled,  and 
appointed  a committee  to  confer  anew  with  the  executive  of  the  state.  This 
conference  produced  nothing  but  a repetition  of  the  doubts  concerning  the  dis- 
position of  the  militia  to  act,  unless  some  actual  outrage  M'ere  offered  to  persons 
or  property,  the  insult  to  Congress  not  being  deemed  a sufficient  provocation. 
On  the  24th,  the  efforts  of  the  state  authority  being  despaired  of.  Congress  were 
summoned  by  the  president  to  meet  at  Trenton  ” (Elliot’s  Debates,  I.  92-94). 
The  mutiny  was  afterwards  suppressed  by  marching  troops  into  Pennsylvania 
under  Major-General  Howe.  Journals,  VIII.  281. 


T HE  C O N F E 1) E \i  A T 1 O N. 


151 


thus  made  the  inclinations,  not  tlie  abilities,  of  the  respective  states 
the  criterion  of  their  contributions  to  the  common  ex})enses  of  the 
Union.  It  authorized  Congress  to  borrow  money,  or  emit  bills, 
on  the  credit  of  the  United  States,  without  the  power  of  provid- 
ing funds  to  secure  the  repayment  of  the  money,  or  the  redemp- 
tion of  the  bills  emitted. 

It  made  no  ])roper  or  competent  provision  for  interior  or  ex- 
terior defence : for  interior  defence,  because  it  allowed  the  indi- 
vidual states  to  appoint  all  regimental  officers  of  the  land  forces, 
and  to  raise  the  men  in  their  own  way,  while  at  the  same  time  an 
ambiguity  rendered  it  uncertain  whether  the  defence  of  the  coun- 
try in  time  of  peace  was  not  left  to  the  particular  states,  both  by 
sea  and  land;  for  exterior  defence,  because  it  authorized  Con- 
gress to  build  and  equip  a navy  without  providing  any  compul- 
sory means  of  manning  it. 

It  failed  to  vest  in  the  United  States  a general  superintend- 
ence of  trade,  equally  necessary  both  with  a view  to  revenue  and 
regulation. 

It  required  the  assent  of  nine  states  in  Congress  to  matters  of 
principal  importance,  and  of  seven  to  all  others  except  adjourn- 
ments from  day  to  day,  and  thus  subjected  the  sense  of  a majority 
of  the  people  of  the  United  States  to  that  of  a minority,  by  putting 
it  in  the  power  of  a small  combination  to  defeat  the  most  necessary 
measures. 

Finally,  it  vested  in  the  federal  government  the  sole  direction 
of  the  interests  of  the  United  States  in  their  intercourse  with 
foreign  nations,  without  empowering  it  to  pass  all  general  laws  in 
aid  and  support  of  the  laws  of  nations ; thus  exposing  the  faith, 
reputation,  and  peace  of  the  country  to  the  irregular  action  of  the 
particular  states.' 

Having  thus  fully  analyzed  for  himself  the  nature  of  the  exist- 
ing constitution,  Hamilton  proposed  to  himself  the  undertaking  of 
inducing  Congress  freely  and  frankly  to  inform  the  country  of  its 
imperfections,  which  made  it  impossible  to  conduct  the  public  af- 
fairs with  honor  to  themselves  and  advantage  to  the  Union;  and 
to  recommend  to  the  several  states  to  appoint  a convention,  with 
full  powers  to  revise  the  Confederation,  and  to  adopt  and  propose 


1 Life  of  Hamilton,  II.  230-237. 


152 


CONSTITUTIONAL  HISTORY. 


such  alterations  as  might  appear  to  be  necessary,  which  should  be 
linally  approved  or  rejected  by  the  states.' 

Eut  he  was  surrounded  by  men  who  were  not  equal  to  the 
great  enterprise  of  guiding  and  enlightening  public  sentiment. 
He  was  in  advance  of  the  time,  and  far  in  advance  of  the  men  of 
the  time.  He  experienced  the  fate  of  all  statesmen  in  the  like 
position,  whose  ideas  have  had  to  wait  the  slow  development  of 
events  to  bring  them  to  the  popular  comprehension  and  assent. 
He  saw  that  his  plans  could  not  be  adopted ; and  he  passed  out  of 
Congress  to  the  pursuits  of  private  life,  recording  upon  them  his 
conviction  that  their  public  proposal  would  have  failed  for  want 
of  support." 

There  was  in  fact  a manifest  indisposition  in  Congress  to  pro- 
pose any  considerable  change  in  the  principle  of  the  government. 
Hence,  nothing  but  the  revenue  system,  with  a change  in  the  rule 
by  which  a partition  of  the  common  burdens  was  to  be  made,  was 
publicly  proposed.  Although  this  system  was  a great  improve- 
ment upon  that  of  the  Confederation,  it  related  simply  to  revenue, 
in  regard  to  which  it  proposed  a reform,  not  of  the  principle  of 
the  government,  but  of  the  mode  of  operation  of  the  old  system ; 
for  it  embraced  only  a specific  pledge  by  the  states  of  certain 
duties  for  a limited  term,  and  not  a grant  of  the  unlimited  power 
of  levying  duties  at  pleasure.  There  was  confessedly  a departure 
from  the  strict  maxims  of  national  credit,  by  not  making  the 
revenue  coextensive  with  its  object,  and  by  not  placing  its  col- 
lection in  every  respect  under  the  authorit}^  charged  with  the  man- 
agement and  payment  of  the  debt  which  it  was  designed  to  meet.® 

These  relaxations  were  a sacrifice  to  the  jealousies  of  the 
states;  and  they  show  that  the  time  had  not  come  for  a change 
from  a mere  federative  union  to  a constitutional  government, 
founded  on  the  popular  will,  and  therefore  acting  by  an  energy 
and  volition  of  its  own. 

The  temper  of  the  time  was  wholly  unfavorable  to  such  a 
change.  The  early  enthusiasm  with  wdiich  the  nation  had  rushed 
into  the  conflict  with  England,  guided  by  a common  impulse  and 


' Life  of  Hamilton,  II.  230-237.  ^ Ibid. 

® See  tlie  Address  to  tlie  States,  accompanying  tlie  proposed  revenue  system, 
April  26,  1783,  from  the  pen  of  Mr.  Madison.  Journals,  VHI.  194-201. 


THE  CONFEDEKATION. 


153 


animated  by  a national  spirit,  had  given  place  to  calculations  of 
local  interest  and  advantage;  and  the  principle  of  the  Confedera- 
tion was  tenaciously  adhered  to,  wliile  tlie  events  which  accom- 
panied and  followed  the  peace  were  rapidly  displaying  its  radical 
incapacity.  The  formation  of  the  state  governments,  and  the  con- 
sequent growth  and  importance  of  state  interests,  which  came  into 
existence  with  the  Confederation,  and  the  fact  that  the  Confedera- 
tion was  itself  an  actual  diminution  of  the  previous  powers  of  the 
Union,  may  he  considered  the  chief  causes  of  the  decline  of  a 
national  spirit.  That  spirit  was  destined  to  a still  further  decay, 
until  the  conflict  of  state  against  state,  and  of  section  against  sec- 
tion, by  shaking  the  government  to  its  foundation,  should  reveal 
both  the  necessity  for  a national  sovereignty  and  the  means  by 
which  it  could  be  called  into  life. 

As  a consequence  and  proof  of  the  decline  of  national  power, 
it  is  worthy  of  observation  that,  at  the  close  of  the  year  1783, 
Congress  had  practically  dwindled  to  a feeble  junto  of  about 
twenty  persons,  exercising  the  various  powers  of  the  government, 
but  without  the  dignity  and  safety  of  a local  habitation.  Migrat- 
ing from  city  to  city  and  from  state  to  state,  unable  to  agree  upon 
a seat  of  government,  from  jealousy  and  sectional  policy ; now  as- 
sembling in  the  capitol  of  a state,  and  now  in  the  halls  of  a col- 
lege ; at  all  times  dependent  upon  the  protection  and  even  the 
countenance  of  local  authorities,  and  without  the  presence  of  any 
of  the  great  and  powerful  minds  who  led  the  earlier  counsels  of 
the  country,  this  body  presented  a not  inadequate  type  of  the  de- 
caying powers  of  the  Union. ^ At  no  time  in  the  history  of  the 

’ The  first  Continental  Congress  was  called  to  meet  at  Pliiladelphia,  that 
being  the  nearest  to  the  centre  of  tlie  Union  of  any  of  the  principal  cities  in  the 
United  States.  Succeeding  congresses  had  been  held  there,  with  the  exception 
of  the  period  when  the  city  was  in  the  possession  of  the  enemy,  in  the  year  1777, 
until,  on  the  21st  of  June,  1783,  in  consequence,  of  the  mutiny  of  the  soldiers,  the 
president  was  authorized  to  summon  the  members  to  meet  at  Trenton,  or  Prince- 
ton, in  New  Jersey,  “ in  order  that  further  and  more  effectual  measures  may  be 
taken  for  suppressing  the  present  revolt,  and  maintaining  the  dignity  and  au- 
thority of  the  United  States.”  On  the  30th,  Congress  assembled  at  Princeton, 
in  the  halls  of  the  college,  which  were  tendered  by  its  officers  for  their  use.  In 
August  a proposition  was  made  to  return  to  Philadelphia,  and  that  on  the 
second  Monday  in  October  Congress  should  meet  at  Annapolis,  unless  in  the 
meantime  it  had  been  ordered  otherwise.  But  this  was  not  agreed  to.  A 


15i 


CONSTITUTIONAL  HISTORY. 


Confederation,  had  all  the  states  been  represented  at  once ; and 
the  return  of  peace  seemed  likely  to  reduce  the  entire  machinery 
of  tlie  government  to  a state  of  complete  inaction.' 

The  Confederation,  at  the  close  of  the  war,  is  found  to  have 
accomplished  much,  and  also  to  have  failed  to  accomplish  much 

committee  was  then  appointed  (in  September),  “to  consider  wliat  jurisdiction 
may  be  proper  for  Congress  in  the  place  of  their  permanent  residence.”  This 
seems  to  have  been  followed  by  propositions  from  several  of  the  states,  from 
New  York  to  Virginia  inclusive,  respecting  a place  for  the  permanent  residence 
of  Congress,  althougli  the  Journal  does  not  state  what  tliey  were.  A question 
was  then  taken  (October  6),  in  wliich  state  buildings  should  be  provided  and 
erected  lor  the  residence  of  Congress,  beginning  with  New  Hampshire  and  pro- 
ceeding with  all  the  states  in  their  order.  Each  state  was  negatived  in  its  turn. 
The  highest  number  of  votes  given  (by  states)  were  for  New  Jersey  and  Mary- 
land, which  had  four  votes  each.  A resolution  was  then  carried,  “ that  buildings 
for  the  use  of  Congress  be  erected  on  or  near  the  banks  of  the  Delaware,  pro- 
vided a suitable  district  can  be  procured  on  or  near  the  banks  of  said  river,  for 
a federal  town;  and  tliat  the  right  of  soil,  and  an  exclusive  or  such  jurisdiction 
as  Congress  may  direct  sliall  be  vested  in  the  United  States and  a committee 
was  appointed,  to  repair  to  the  falls  of  the  Delaware,  to  view  the  country,  and 
report  a proper  district  for  this  purpose.  A variety  of  motions  then  followed, 
for  the  selection  of  a place  of  temporary  residence,  but  none  was  adopted.  On 
the  17th  of  October,  a proposition  was  made  by  a delegate  of  Massachusetts  (Mr. 
Gerry)  to  have  buildings  provided  for  the  alternate  residence  of  Congress  in 
two  places,  with  the  idea  of  “securing  the  mutual  confidence  and  affection  of 
the  states,  and  preserving  the  federal  balance  of  power;”  but  the  question  was 
lost.  Afterwards  the  following  resolution  was  agreed  to:  “Whereas,  there  is 

reason  to  expect  that  the  providing  buildings  for  the  alternate  residence  of 
Congress  in  two  places  will  be  productive  of  the  most  salutary  effects,  by  secur- 
ing the  mutual  confidence  and  affections  of  the  states;  ResoUed,  That  buildings 
be  likewise  erected,  for  the  use  of  Congress,  at  or  near  the  lower  falls  of  the 
Potomac,  or  Georgetown,  provided  a suitable  district  on  the  banks  of  the  river 
can  be  procured  for  a federal  town,  and  the  right  of  soil,  and  an  exclusive  juris- 
diction, or  such  as  Congress  may  direct,  shall  be  vested  in  the  United  States; 
and  that  until  tlie  buildings  to  be  erected  on  the  banks  of  the  Delaware  and 
Potomac  shall  be  prepared  for  the  reception  of  Congress,  their  residence  shall  be 
alternately,  at  equal  periods  of  not  more  than  one  year  and  not  less  than  six 
months,  in  Trenton  and  Annapolis;  and  the  president  is  hereby  authorized  and 
directed  to  adjourn  Congress  on  the  twelfth  day  of  November  next,  to  meet  at 
Annapolis  on  the  twenty-sixth  da}'^  of  the  same  month,  for  the  despatch  of  public 
business.”  Journals  of  Congress  from  June  to  November,  1783. 

Report  of  a committee  appointed  to  devise  means  for  procuring  a full  repre- 
sentation in  Congress,  made  November  1,  1783.  Journals,  VHI.  480-483. 


I 


THE  CONFEDEK ATIOK 


155 


more.  It  had  effected  the  cession  of  the  public  lands  to  the 
United  States ; for  althoug-h  that  cession  Avas  not  comjdeted  until 
after  the  ])eace,  still  the  arch  on  which  the  Union  Avas  ultimately 
to  rest  for  A\diateA^er  of  safety  and  perj)etuity  remained  for  it 
tlirough  the  four  following  years  Avas  de})osited  in  its  place 
A\dien  the  Confederation  Avas  established.  It  had  also  placed  the 
United  States,  as  a nation,  in  a position  to  contract  some  alliances 
Avith  foreign  powers.  It  had  finished  the  Avar;  it  had  achieved 
the  independence  of  the  nation ; and  had  given  peace  to  the  coun- 
try. It  had  thus  demonstrated  the  A^alue  of  the  Union,  although 
its  defect iA"e  construction  aided  the  deA^elopnient  of  tendencies 
Avhich  Aveakened  and  undermined  its  strenirth. 

But  its  imperfect  performance  of  the  great  tasks  to  Avhich  it 
had  been  called  displayed  its  inherent  defects.  It  had  often  been 
unequal  to  the  purpose  of  effectually  draAving  forth  the  resources 
of  its  members  for  the  common  welfare  and  defence.  It  had  often 
AA^anted  an  army  adequate  to  the  protection  and  proportioned  to 
the  abilities  of  the  country.  It  had,  therefore,  seen  important 
posts  reduced,  others  imminently  endangered,  and  Avhole  states 
and  large  parts  of  others  overrun  by  small  bodies  of  the  enemy — 
had  been  destitute  of  sufficient  means  of  feeding,  clothing,  pay- 
ing, and  appointing  its  troops,  and  had  thus  exposed  them  to  suf- 
ferings for  AAdiicli  history  scarcely  affords  a parallel.  It  had  been 
compelled  to  make  the  administration  of  its  affairs  a succession 
of  temporary  expedients,  inconsistent  Avith  order,  economy,  energy, 
or  a scrupulous  adherence  to  public  engagements.  It  found  itself, 
at  the  close  of  the  Avar,  Avithout  any  certain  means  of  doing  jus- 
tice to  those  Avho  had  been  the  principal  supporters  of  the  Union : 
to  an  army  Avhich  had  bravely  fought,  and  patiently  suffered — to 

citizens  and  to  foreigners,  Avho  had  cheerfully  lent  their  money 

and  to  others  AAffio  had  contributed  property  and  personal  service 
to  the  common  cause.  It  AAms  obliged  to  rely,  for  the  last  hope 
of  doing  that  justice,  on  the  precarious  concurrence  of  thirteen 
distinct  legislatures,  the  dissent  of  either  of  Avhich  might  defeat 
the  plan  and  leave  the  states,  at  an  early  period  of  their  exist- 
ence, involved  in  all  the  disgrace  and  mischiefs  of  violated  faith 
and  national  bankruptcy.' 


\ 


1 Hamilton’s  proposed  Resolutions ; Life,  II.  230-237. 


156 


CONSTITUTIONAL  HISTORY. 


Wliile,  tlierefore,  the  United  States  emerged  from  the  war, 
whicli  for  seven  long  years  had  wasted  the  energies  and  drained 
the  resources  of  the  people,  with  national  independence,  dark  and 
portentous  clouds  gathered  about  the  dawn  of  peace,  as  the  future 
opened  before  them.  The  past  had  been  crowned  with  victory ; 
dearly  bought,  but  not  at  too  dear  a price,  for  it  brought  with  it 
the  vast  boon  of  civil  liberty.  But  the  dangers  and  embarrass- 
ments through  which  that  victory  had  been  achieved  made  it 
apparent  that  the  government  of  the  country  was  unequal  to  its 
protection  and  prosperity.  That  government  was  now  called  to 
assume  the  great  duties  of  peace,  without  the  acknowledged  power 
of  maintaining  either  an  army  or  a navy,  and  without  the  means 
of  combining  and  directing  the  forces  and  wills  of  the  several 
parts  to  a general  end ; without  the  least  control  over  commerce ; 
without  the  power  to  fulfil  a treaty ; without  laws  acting  upon 
individuals ; and  with  no  mode  of  enforcing  its  own  will  but  by 
coercing  a delinquent  state  to  its  federal  obligations  by  force  of 
arms.  How  it  met  the  great  demands  upon  its  energy  and  dura- 
bility which  its  new  duties  involved  will  require  consideration 
after  the  Treaty  of  Peace  and  Independence  has  been  described. 


CHAPTEE  X. 

Januaky,  1784-May,  1787. 

Duties  and  Necessities  of  Congkess. — Kequisitions  on  the 
States. — Eevenue  System  of  1783. 

The  period  which  now  claims  our  attention  is  that  extending 
from  the  Peace  of  1783  to  the  calling  of  the  convention  which 
framed  the  Constitution  in  1787.  It  was  a period  full  of  dangers 
and  difficulties.  The  destinies  of  the  Union  seemed  to  be  left  to 
all  the  hazards  arising  from  a defective  government  and  the  illib- 
eral and  contracted  policy  of  its  members.  Patriotism  was  gen- 
erally thought  to  consist  in  adhesion  to  state  interests,  and  a 
reluctance  to  intrust  power  to  the  organs  of  the  nation.  The 
national  obligations  were  therefore  disregarded ; treaty  stipula- 
tions remained  unfulfilled ; the  great  duty  of  justice  failed  to  be 
discharged  ; rebellion  raised  a dangerous  and  nearly  successful 
front ; and  the  commerce  of  the  country  was  exposed  to  the  in- 
jurious policy  of  other  nations,  with  no  means  of  counteracting 
or  escaping  from  its  effects.  At  length  the  people  of  the  United 
States  began  to  see  danger  after  they  had  felt  It,  and  the  growth 
of  sounder  views  and  higher  principles  of  public  conduct  gave  to 
the  friends  of  order,  public  faith,  and  national  security  a control- 
ling influence  in  the  country,  and  enabled  the  men,  Avho  had  won 
for  it  the  blessings  of  liberty,  to  establish  for  it  a durable  and 
sufficient  government. 

Four  years  only  elapsed  between  the  return  of  peace  and  the 
downfall  of  a government  which  had  been  framed  with  the  hope 
and  promise  of  perpetual  duration — an  interval  of  time  no  longer 
than  that  during  which  the  people  of  the  United  States  are  now 
accustomed  to  witness  a change  of  their  rulers,  without  injurj^  to 
any  principle  or  any  form  of  their  institutions.  But  this  brief 
interval  was  full  of  suffering  and  peril.  There  are  scarcely  any 
evils  or  dangers  of  a political  nature,  and  springing  from  political 


158 


CONSTITUTIONAL  HISTORY. 


and  social  causes,  to  which  a free  people  can  be  exposed,  which 
the  people  of  the  United  States  did  not  experience  during  this 
period.  That  these  evils  and  dangers  did  not  precipitate  the 
country  into  civil  war,  and  that  the  great  undertaking  of  form- 
ing a new  and  constitutional  government  by  delegates  of  the 
people  could  be  entered  upon  and  prosecuted  with  the  calmness, 
conciliation,  and  concession  essential  to  its  success,  is  owing  partly 
to  the  fact  that  the  country  had  scarcely  recovered  from  the  ex- 
hausting effects  of  the  Kevolutionary  struggle  ; but  mainly  to  the 
existence  of  a body  of  statesmen,  formed  during  that  struggle, 
and  fitted  by  hard  experience  to  build  up  the  government.  But 
before  their  efforts  and  their  influences  are  explained,  the  period 
which  developed  the  necessity  for  their  interposition  must  be 
described.  He  who  would  know  what  the  Constitution  of  the 
United  States  was  designed  to  accomplish  must  understand  the 
circumstances  out  of  which  it  arose. 

On  the  3d  of  htovember,  1783,  a new  Congress,  according  to 
annual  custom,  was  assembled  at  Annapolis,  and  attended  by  only 
fifteen  members,  from  seven  states.  Two  great  acts  awaited  the 
attention  of  this  assembly — both  of  an  interesting  and  important 
character,  both  of  national  concern.  The  one  was  the  resie’na- 

^ ^ O 

tion  of  Washington  ; a solemnity  which  appealed  to  every  feeling 
of  national  gratitude  and  pride,  and  which  would  seem  to  have 
demanded  whatever  of  pomp  and  dignity  and  power  the  United 
States  could  display.  The  other  was  a legislative  act,  which  was 
to  give  peace  to  the  country  by  the  ratification  of  the  treaty. 
Several  weeks  passed  on,  and  yet  the  attendance  was  not  much 
increased.  Washington’s  resignation  was  received,  at  a public 
audience  of  seven  states,  represented  by  about  twenty  delegates ; ‘ 


’ Tlie  Journals  give  tlie  following  account  of  Washington’s  resignation: 
“According  to  order,  his  excellency  tlie  Commander-in-chief  was  admitted 
to  a public  audience,  and  being  seated,  the  president,  after  a pause,  informed 
him  tliat  the  United  States  in  Congress  assembled  were  prepared  to  receive  his 
communications;  whereupon  he  arose  and  addressed  as  follows:  ‘Mr.  Presi- 
dent,—The  great  events  on  which  my  resignation  depended  having  at  length 
taken  place,  I have  now  the  honor  of  offering  my  sincere  congratulations  to 
Congress,  and  of  presenting  myself  before  them  to  surrender  into  their  hands 
the  trust  committed  to  me,  and  to  claim  the  indulgence  of  retiring  from  the 
service  of  my  country.  Happy  in  the  confirmation  of  our  independence  and 


THE  CONFEDEH  ATION. 


151) 


and  on  the  same  day  letters  were  despatched  to  the  otlier  states, 
urging  them,  for  the  safety,  honor,  and  good  faith  of  tlie  United 
States,  to  require  the  immediate  attendance  of  their  mem- 


sovereignty,  and  pleased  witli  the  opportunity  afforded  the  United  States  of 
becoming  a respectable  nation,  I resign  with  satishiction  the  appointment  I 
accepted  with  diffidence;  a diffidence  in  my  abilities  to  accomplish  so  arduous 
a task  ; which,  however,  w\as  superseded  by  a confidence  in  the  rectitude  of  our 
cause,  the  support  of  the  supreme  power  of  the  Union,  and  the  patronage  of 
Heaven.  The  successful  termination  of  the  war  has  verified  the  most  sanguine 
expectations;  and  my  gratitude  for  tlie  interposition  of  Providence,  and  the 
assistance  I have  received  from  my  countrymen,  increases  with  every  review  of 
the  momentous  contest.  While  I repeat  my  obligations  to  the  army  in  general, 
I sliould  do  injustice  to  my  own  feelings  not  to  acknowledge,  in  this  place,  the 
peculiar  services  and  distinguished  merits  of  the  gentlemen  who  have  been 
attached  to  my  person  during  the  war.  It  was  impossible  the  choice  of  confi- 
dential officers  to  compose  my  family  should  have  been  more  fortunate.  Per- 
mit me,  sir,  to  recommend  in  particular  those  who  have  continued  in  the  service 
to  the  present  moment,  as  worthy  of  the  favorable  notice  and  patronage  of  Con- 
gress. I consider  it  an  indispensable  duty  to  close  this  last  act  of  my  official 
life  by  commending  the  interests  of  our  dearest  country  to  the  protection  of 
Almighty  God,  and  those  who  have  the  superintendence  of  them  to  his  holy 
keeping.  Having  now  finished  the  work  assigned  me,  I retire  from  the  great 
theatre  of  action,  and,  bidding  an  afifectionate  farewell  to  this  august  body  un- 
der whose  orders  I have  so  long  acted,  I here  offer  my  commission,  and  take 
my  leave  of  all  the  employments  of  pulfiic  life.’  He  then  advanced  and  deliv- 
ered to  the  president  his  commission,  with  a copy  of  his  address,  and  having 
resumed  his  place,  the  president  (Thomas  Miffiin)  returned  him  the  following 
answer:  ‘Sir, — The  United  States  in  Congress  assembled  receive  with  emo- 
tions too  affecting  for  utterance  the  solemn  resignation  of  the  authorities  under 
wliich  you  have  led  their  ti-oops  with  success  tli rough  a perilous  and  doubtful 
war.  Called  upon  by  your  country  to  defend  its  invaded  rights,  you  accepted 
the  sacred  charge  before  it  liad  formed  alliances,  and  whilst  it  was  without 
funds  or  a government  to  support  you.  You  have  conducted  the  great  military 
contest  with  wisdom  and  fortitude,  invariably  regarding  the  rights  of  the  civil 
power  through  all  disasters  and  changes.  You  have,  by  the  love  and  confidence 
of  your  fellow-citizens,  enabled  them  to  display  their  martial  genius  and  trans- 
mit their  fame  to.  posterity.  You  have  persevered  till  these  United  States, 
aided  by  a magnanimous  king  and  nation,  have  been  enabled,  under  a just 
Providence,  to  close  the  Mnir  in  freedom,  safety,  and  independence;  on  which 
happy  event  we  sincerely  join  you  in  congratulations.  Having  defended  the 
standard  of  liberty  in  this  New  World,  having  taught  a lesson  useful  to  those 
who  inflict  and  to  those  who  feel  oppression,  you  retire  from  the  great  theatre 
of  action  with  the  blessings  of  your  fellow-citizens ; but  the  glory  of  your  vir- 


IGO 


CONSTITUTIONAL  HISTORY. 


bers.'  It  was  not,  however,  until  the  14th  of  January  that  the 
treaty  could  be  ratified  by  the  constitutional  number  of  nine 
states  ; and,  when  this  took  place,  there  were  present  but  three- 
and-twenty  members." 

It  should  undoubtedly  be  considered  that,  from  the  nature  and 
form  of  the  government,  the  delegates  in  Congress  had  in  some 
sense  an  ambassadorial  character,  and  were  assembled  as  the  rep- 
resentatives of  sovereign  states.  But  with  whatever  dignity,  real 
or  fictitious,  they  may  be  considered  as  having  been  clothed,  the 
government  itself  was  one  that  created  a constant  tendency  to 
the  neglect  of  its  functions,  and  therefore  produced  great  practi- 
cal evils.  The  Articles  of  Confederation  provided  that  delegates 
should  be  annually  appointed  by  the  states,  to  meet  in  Congress 
on  the  first  Monday  in  November  in  every  year  ; and  although 
they  also  gave  to  Congress  the  power  of  adjournment  for  a recess, 
during  which  the  government  was  to  be  devolved  on  a committee 
of  the  states,  they  fixed  no  period  for  the  termination  of  a ses- 
sion. While  the  war  lasted,  it  had  been  both  customary  and 
necessary  for  the  old  Congress,  and  for  its  successors  under  the 
Confederation,-  to  be  perpetually  in  session  ; and  this  practice  was 
continued  after  the  peace,  with  very  short  intervals  of  committees 
of  the  states,  partly  from  habit,  and  partly  in  consequence  of  the 
reduction  of  the  delegations  to  the  lowest  constitutional  number. 
This  rendered  despatch  impossible,  by  putting  it  in  the  power  of 
a few  members  to  withhold  from  important  matters  the  consti- 
tutional concurrence  of  nine  states.  Without  any  reference  to 
population  by  the  Articles  of  Confederation,  not  less  than  two 
nor  more  than  seven  delegates  were  allowed  to  each  state ; and 

tiies  will  not  terminate  with  yonr  military  command  ; it  will  continue  to  ani- 
mate remotest  ages.  We  feel  with  you  our  obligations  to  the  army  in  general, 
and  will  particularly  charge  ourselves  with  the  interests  of  those  confidential 
officers  who  have  attended  your  person  to  this  affecting  moment.  We  join  you 
in  commending  the  interests  of  our  dearest  country  to  the  protection  of  Almighty 
God,  beseeching  him  to  dispose  the  hearts  and  minds  of  its  citizens  to  improve 
the  opportunity  afforded  them  of  becoming  a happy  and  respectable  nation. 
And  for  you  we  address  to  him  our  earnest  prayers  that  a life  so  beloved  may 
be  fostered  witli  all  his  care;  that  your  days  may  be  happy  as  they  have  been 
illustrious;  and  that  he  will  finally  give  you  that  reward  which  this  world 
cannot  give.”  Journals,  IX.  12,  13.  December  22,  1783. 

] IPitl.  * Journals,  IX.  30.  January  14,  1784. 


THE  CONFEDERATION. 


IGl 


by  casting  tlie  burden  of  maintaining  its  own  delegates  u])on  eacli 
state,  they  created  a strong  motive  for  preferring  tlie  smaller 
number,  and  often  for  not  being  represented  at  all.  This  motive 
became  more  active  after  the  peace,  when  the  immediate  stimu- 
lus of  hostilities  was  withdrawn;  and  it  was  at  the  same  time 
accompanied,  in  most  of  the  states,  by  a great  jealousy  of  the 
})owers  of  Congress,  a disinclination  to  enlarge  them,  and  a preva- 
lent feeling  that  each  state  was  sufficient  unto  itself  for  all  the 
purposes  of  government.'  The  consequence  was,  that  the  Con- 
gress of  the  Confederation,  from  the  ratification  of  the  Treaty  of 
l^eace  to  the  adoption  of  the  Constitution,  although  entitled  to 
ninety-one  members,  was  seldom  attended  by  one  third  of  that 
number;  and  the  state  of  the  representation  was  sometimes  so 
low  that  one  eighth  of  the  whole  number  present  could,  under 
the  constitutional  rule,  negative  the  most  important  measures.'' 

1 See  Washington’s  letter  to  Governor  Harrison,  of  the  date  of  January  18, 
1784.  Writings,  IX.  11. 

2 Twenty-three  members  voted  on  the  ratification  of  the  treaty,  January  14, 

1784.  On  tlie  19th  of  April  of  the  same  year,  tlie  same  number  being  present, 
eleven  states  only  being  represented,  and  nine  of  these  having  only  two  mem- 
bers eacli,  the  following  resolution  was  passed  : ResoUed^  That  the  legislatures 

of  the  several  states  be  informed  that,  while  they  are  respectively  represented 
in  Congress  by  two  delegates  only,  such  a unanimity  for  conducting  the  most 
important  public  concerns  is  necessary  as  can  rarely  be  expected ; that  if  each 
of  the  thirteen  states  should  be  represented  by  two  members,  five  out  of  twenty- 
six,  being  only  a fifth  of  the  whole,  may  negative  any  measures  requiiing  the 
voice  of  nine  states;  that  of  eleven  states  now  on  the  floor  of  Congress,  nine 
being  represented  by  only  two  members  from  each,  it  is  in  the  power  of  three 
out  of  twenty-five,  making  only  one  eighth  of  the  whole,  to  negative  such  a 
measure,  notwithstanding  that  by  the  Articles  of  Confederation  the  dissent  of 
five  out  of  thirteen,  being  more  than  one  third  of  the  number,  is  necessary  for 
such  a negative  ; that  in  a representation  of  three  members  from  each  state,  not 
less  than  ten  of  thirty-nine  could  so  negative  a matter  requiring  the  voice  of 
nine  states;  that,  from  facts  under  the  observation  of  Congress,  they  are  clearly 
convinced  that  a representation  of  two  members  from  the  several  states  is  ex- 
tremely injurious  by  producing  delays,  and  for  this  reason  is  likewise  much 
more  expensive  than  a general  representation  of  three  members  from  each  state; 
that  therefore  Congress  conceive  it  to  be  indispensably  necessary,  and  earnestly 
recommend,  that  each  state,  at  all  times  when  Congress  are  sitting,  be  hereafter 
represented  by  three  members  at  least;  as  the  most  injurious  consequences  may 
be  expected  from  the  want  of  such  representation.”  At  the  time  when  the  re- 
port of  the  Convention,  transmitting  the  Constitution,  was  received  (September 

L— 11 


102 


CONSTITUTIONAL  HISTORY. 


Such  was  the  government  which  was  now  called  to  provide  for 
the  payment  of  at  least  the  interest  on  the  public  debts,  and  to 
procure  the  means  for  its  own  support ; to  carry  out  the  Treaty 
of  Peace,  and  secure  to  the  country  its  advantages ; to  complete 
the  cessions  of  the  western  lands,  and  provide  for  their  settlement 
and  government ; to  guard  the  commerce  of  the  country  against 
the  hostile  policy  of  other  nations ; to  secure  to  each  state  the  forms 
and  principles  of  a republican  government ; to  extend  and  secure 
the  relations  of  the  country  with  foreign  powers ; and  to  preserve 
and  perpetuate  the  Union.  By  tracing  the  history  of  its  efforts 
and  its  failures  with  regard  to  these  great  objects,  we  may  under- 
stand the  principal  causes  which  brought  about  the  conviction  on 
the  part  of  the  people  of  the  United  States  that  another  and  a 
stronger  government  must  take  the  place  of  the  Confederation. 

It  was  ascertained  in  April,  1781,  that  a sum  exceeding  three 
millions  of  dollars  would  be  wanted  to  pay  the  arrears  of  interest 
and  to  meet  the  interest  and  current  expenses  of  the  public  service 
for  the  year.'  Two  sources  only  could  be  looked  to  for  this  sup- 
ply. It  must  either  be  obtained  by  requisitions  on  the  states, 
according  to  the  old  rule  of  the  Confederation,  or  from  the  new 
duties  and  taxes  proposed  by  the  revenue  system  of  1783.  But 
that  proposal  was  still  under  the  consideration  of  the  state  legis- 
latures, some  of  them  having  as  yet  acceded  to  the  impost  only, 
and  others  having  decided  neither  on  the  impost  nor  on  the  sup- 
plementary taxes.  Some  time  must  therefore  elapse  before  the 
final  confirmation  of  this  system,  even  if  its  final  confirmation 
were  probable ; and,  after  it  should  have  been  confirmed,  further 
time  would  be  requisite  to  bring  it  into  operation.  It  was  quite 
clear,  therefore,  that  other  measures  must  be  resorted  to.  Kequi- 
sitions  presented  the  sole  resource.  But  in  what  mode  were  they 
to  be  made?  The  preceding  Congress  had  offered  two  recom- 
mendations to  the  states  on  the  subject  of  the  rule  of  the  Confed- 
eration, which  directed  that  the  quotas  of  the  several  states  should 
be  apportioned  according  to  the  value  of  their  lands.  The  Con- 


28,  1787),  there  were  thirty-three  members  in  attendance,  from  twelve  states. 
Rhode  Island  was  not  represented. 

^ The  sum  reported  by  a committee,  and  finally  agreed  to  be  necessary,  was 
13,812,539.33.  Journals,  IX.  171.  April  27,  1784. 


THE  CONFEDERATION. 


1G3 


gress  of  1788,  in  order  to  give  this  rule  a fair  trial,  had  recom- 
mended to  the  states  to  make  returns  of  their  lands,  buildings, 
and  inhabitants ; * but,  a})prehending  that  the  insufficiency  of  the 
rule  would  immediately  show  itself,  they  had  followed  tliis  rec- 
ommendation witli  anotlier,  to  change  the  basis  of  contribution 
fi’om  land  to  numbers  of  inhabitants.'*  Both  of  these  propositions 
were  still  under  the  consideration  of  the  state  legislatures,  and 
four  states  only  had  acceded  to  them.^  A new  requisition,  there- 
fore, if  made  at  all,  must  be  made  under  the  old  rule  of  the  Con- 
federation, and  with  entirely  imperfect  means  of  making  it  with 
justice  and  equality.  It  was  found,  however,  that  large  arrears  of 
the  old  requisitions  made  during  the  war  were  still  due  from  the 
states.'  A new  call  upon  them  to  pay  one  half  of  these  arrears,  de- 
ducting therefrom  the  amount  of  their  payments  to  the  close  of  the 
year,  would,  if  complied  with,  produce  a sum  nearly  sufficient  for 
the  wants  of  the  government.  This  resource  was  accordingly  tried.^ 
In  the  year  1785  three  millions,  it  was  ascertained,  would  be 
required  for  the  service  of  the  year.  A renewed  call  was  made 
for  the  remaining  unpaid  moiety  of  the  old  requisition  of  eight 
millions,  and  for  the  whole  of  the  old  requisition  of  two  millions  ; 
but,  considering  that  the  public  faith  required  Congress  to  con- 
tinue their  annual  demand  for  money,  they  issued  a new  requisi- 
tion for  three  millions,  and  adjusted  it  according  to  the  best  infor- 
mation they  could  obtain.® 

In  the  year  1786  a sum  of  more  than  three  millions  was  wanted 
for  the  current  demands  on  the  treasury,  and  a new  requisition 
was  made  for  it,  under  the  old  rule  of  the  Confederation.'  Two 
of  the  states,  Bhode  Island  and  Hew  Jersey,  thereupon  passed 
acts  making  their  own  paper  currency  receivable  on  all  arrears  of 
taxes  due  to  the  United  States,  and  proposing  to  pay  their  quotas 
in  such  currency.® 

1 Journals,  VIII.  129.  February  17,  1783.  " Ibid.,  198.  April  26,  1783. 

3 Connecticut,  New  Jersey,  Pennsylvania,  and  South  Carolina. 

* Of  the  old  requisition  of  $8,000,000,  made  October  30,  1781,  only  $1,486,- 
511.71  had  been  paid  by  all  the  states  before  December  31,  1783. 

® Journals,  IX.  171-179.  April  27,  1784. 

® Journals,  X.  325-334.  September  27,  1785. 

’ Journals,  XI.  167.  August  2,  1786. 

® Journals,  XI.  224.  September  18, 1786.  Upon  this  attempt  of  Rhode  Island 


164 


CONSTITUTIONAL  HISTORY. 


But  the  entire  inadequacy  of  this  source  of  supply  to  main- 
tain the  federal  government  and  to  discharge  the  annual  public 
engagements  had  now  become  but  too  apparent.  From  the  1st 
of  hlovember,  1781,  to  the  1st  of  January,  1786,  less  than  two  and 
a half  millions  of  dollars  had  been  received  from  requisitions  made 
during  that  period,  amounting  to  more  than  ten  millions.'  For 
tiie  last  fourteen  months  of  that  interval  the  average  receipts  from 
requisitions  amounted  to  less  than  four  hundred  thousand  dollars 
per  annum,  while  the  interest  alone  due  on  the  foreign  debt  was 
more  than  half  a million ; and,  in  the  course  of  each  of  the  nine 
following  years,  the  average  sum  of  one  million  annually  would 
become  due  by  instalments  on  the  principal  of  that  debt.""  In  ad- 
dition to  this,  the  interest  on  the  domestic  debt ; the  security  of 
the  navigation  and  commerce  of  the  country  against  the  Barbary 
powers ; the  immediate  protection  of  the  people  dwelling  on  the 
frontier  from  the  savages ; the  establishment  of  military  maga- 
zines in  different  parts  of  the  Union,  quite  indispensable  to  the 
public  safety ; the  maintenance  of  the  federal  government  at 
home,  and  the  support  of  the  public  servants  abroad — each  and 
all  depended  upon  the  contribution  of  the  states  under  the  annual 
requisitions,  and  were  each  and  all  likely  to  be  involved  in  a com- 
mon failure  and  ruin." 

There  can  be  no  doubt  that  the  continuance  of  the  practice  of 
making  requisitions,  after  the  proposal  of  the  revenue  system  of 


and  New  Jersey  to  pay  their  proportions  in  their  own  paper  currency  the 
report  of  a committee  declared,  “That  to  admit  the  receij)t  of  bills  of  credit, 
issued  under  the  authority  of  an  individual  state,  in  discharge  of  their  specie 
proportions  of  a requisition,  Mmuld  defeat  its  object,  as  the  said  bills  do  not  cir- 
culate out  of  the  limits  of  the  state  in  wdiich  they  are  emitted,  and  because  a 
paper  medium  of  any  state,  liowever  well  funded,  cannot,  either  in  the  exten- 
siveness of  its  circulation  or  in  the  course  of  its  exchange,  be  equally  valuable 
with  gold  and  silver.  That  if  tlie  bills  of  credit  of  the  states  of  Rhode  Island 
and  New  Jersey  were  to  be  received  from  those  states  in  discharge  of  federal 
taxes,  upon  the  principles  of  equal  justice,  bills  emitted  by  any  other  states  must 
be  received  by  them  also  in  payment  of  their  proportions,  and  thereby,  instead 
of  the  requisitions  yielding  a sum  in  actual  money,  nothing  but  paper  would  be 
brought  into  the  federal  treasury,  which  would  be  wholly  inapplicable  to  the 
payment  of  any  part  of  the  interest  or  principal  of  the  foreign  debt,  or  the  main- 
tenance of  the  government  of  the  United  States.” 

1 Journals,  XI.  34-40.  February  15,  178G. 


2 Ibid. 


^ Ibid. 


THE  CONFEDERATION. 


105 


1783,  liad  some  tendency  to  prevent  the  adoption  of  tliat  system 
by  the  states.  But  there  was  no  other  alternative  within  the  con- 
stitutional reach  of  Congress ; and  in  the  meantime  the  revenue  sys- 
tem, submitted  as  it  necessarily  was  to  the  legislatures  of  thirteen 
different  states,  was,  as  far  as  it  was  assented  to,  embarrassed  with 
the  most  discordant  and  irreconcilable  provisions.  It  was  ascer- 
tained in  February,  1780,  that  seven  of  the  states  had  granted  the 
impost  part  of  the  system  in  such  a manner  that,  if  the  other  six 
states  had  made  similar  grants,  the  plan  of  the  general  impost 
might  have  been  immediately  put  into  operation. ‘ Two  of  the 
other  states  had  also  granted  the  impost,  but  had  embarrassed 
their  grants  Avith  provisos  which  suspended  their  operation  until 
all  the  other  states  should  have  passed  laws  in  full  conformity 
with  the  Avhole  system. Two  other  states  had  fully  acceded  to 
the  system  in  all  its  parts ; ' but  four  others  had  not  decided  in 
favor  of  any  part  of  it.“ 

Xo  member  of  the  Confederacy  had,  at  this  time,  suggested  to 
Congress  any  reasonable  objection  to  the  principles  of  the  system, 
and  the  contradictory  provisions  by  which  their  assent  to  it  had 
been  clogged  present  a striking  proof  of  the  inherent  difficulties 
of  obtaining  any  important  constitutional  change  from  the  legis- 
latures of  the  states.  The  government  was  founded  upon  a prin- 
ciple by  Avhich  all  its  poAvers  were  derived  from  the  states  in  their 
corporate  capacities  ; in  other  Avords,  it  Avas  a government  created 
by,  and  deriving  its  authority  from,  the  governments  of  the  states. 
They  alone  could  change  the  fundamental  laAv  of  its  organization  ; 
and  they  were  actuated  by  such  motives  and  jealousies  as  rendered^ 
a unanimous  assent  to  any  change  a great  improbability.  Still, 
the  Congress  of  1786  hoped  that,  by  a clear  and  explicit  declara- 
tion of  the  true  position  of  the  country,  the  requisite  compliance 
of  the  states  might  be  obtained.  They  accordingly  made  known, 
in  the  most  solemn  manner,  the  public  embarrassments,  and  de- 
clared that  the  crisis  had  arrived  Avhen  the  people  of  the  United 
States  must  decide  Avhether  they  Avere  to  continue  to  rank  as  a 


^ New  Hampshire,  Massachusetts,  Connecticut,  New  Jersey,  Virginia,  North 
Carolina,  and  South  Carolina, 

^ Penns}dvania  and  Delaware.  ^ Delaware  and  North  Carolina. 

^ Rhode  Island,  New  York,  Maryland,  and  Georgia. 


IGG 


CONSTITUTIONAL  HISTOKY. 


nation  by  maintaining  the  public  faith  at  home  and  abroad,  or 
whether,  for  want  of  timely  exertion  in  establishing  a general  rev- 
enue, they  would  hazard  the  existence  of  the  Union  and  the  great 
national  privileges  which  they  had  fought  to  obtain/ 

Under  the  influence  of  this  urgent  representation  all  the  states, 
except  N"ew  York,  passed  acts  granting  the  impost,  and  vesting 
the  power  to  collect  it  in  Congress,  pursuant  to  the  recommenda- 
tions of  1783,  but  upon  the  condition  that  it  should  not  be  in  force 
until  all  the  states  had  granted  it  in  the  same  manner.  The  state 
of  New  York  passed  an  acU  reserving  to  itself  the  sole  power  of 
levying  and  collecting  the  impost ; making  the  collectors  amena- 
ble to  and  removable  by  the  state,  and  not  by  Congress ; and  mak- 
ing the  duties  receivable  in  specie  or  bills  of  credit,  at  the  option 
of  the  importer.  Such  a departure  from  the  plan  suggested  by 
Congress  and  adopted  by  the  other  states,  of  course,  made  the 
whole  system  inoperative  in  the  other  states,  and  there  remained 
no  possibility  of  procuring  its  adoption  but  by  inducing  the  state 
of  New  York  to  reconsider  its  determination.  All  hope  of  meet- 
ing the  public  engagements  and  of  carrying  on  the  government 
now  turned  upon  the  action  of  a single  state. 

The  principal  argument  made  use  of  by  those  who  supported 
the  conduct  of  New  York  was  that  Congress,  being  a single  body, 
might  misapply  the  money  arising  from  the  duties.  An  answer 
to  this  pretence,  from  the  pen  of  Hamilton,  declared  that  the  inter- 
ests and  liberties  of  the  people  were  not  less  safe  in  the  hands  of 
those  whom  they  had  delegated  to  represent  them  for  one  year  in 

1 The  report  on  this  occasion  (February  15,  1786),  drawn  by  Rufus  King, 
declared  “ tliat  the  requisitions  of  Congress  for  eight  years  past  have  been  so 
irregular  in  their  operation,  so  uncertain  in  their  collection,  and  so  evidently 
unproductive,  that  a reliance  on  them  in  future  as  a source  from  whence  moneys 
are  to  be  drawn  to  discharge  the  engagements  of  the  Confederacy,  definite  as 
they  are  in  time  and  amount,  would  be  not  less  dishonoral>le  to  the  understand- 
ings of  those  who  entertain  such  confidence  than  it  would  be  dangerous  to  the 
welfare  and  peace  of  the  Union.  The  committee  are  therefore  seriously  impressed 
with  the  indispensable  obligation  that  Congress  are  under  of  representing  to  the 
immediate  and  impartial  consideration  of  the  several  states  the  utter  impossibil- 
ity of  maintaining  and  preserving  the  faith  of  the  federal  government  by  tem- 
porary requisitions  on  the  states,  and  the  consequent  necessity  of  an  early  and 
complete  accession  of  all  the  states  to  the  revenue  system  of  the  18th  of  April, 
1783.”  “May  4,  1786. 


THE  CONFEDERATION. 


107 


Congress  than  they  were  in  tlie  hands  of  tliose  wlioni  they  had 
delegated  to  i'e[)resent  them  for  one  or  four  years  in  the  legisla- 
ture of  the  state  ; that  all  government  implies  trust,  and  that  every 
government  must  be  trusted  so  far  as  it  is  necessary  to  enable  it 
to  attain  the  ends  for  which  it  is  instituted,  without  which  insult 
and  op|)ression  from  abroad  and  confusion  and  convulsion  at 
home  must  ensue.'  The  real  motive,  however,  with  those  who 
ruled  the  counsels  of  New  York  at  this  period,  was  a hope  of 
the  commercial  aggrandizement  of  the  state;  and  the  jealous- 
ies and  fears  of  national  power,  which  were  widely  prevalent, 
Avere  diligently  employed  to  defeat  the  system  proposed  by 
Congress. 

After  the  passage  of  the  act  of  New  York,  and  the  adjourn- 
ment of  the  legislature.  Congress  earnestly  recommended  to  the 
executive  of  that  state  to  convene  the  legislature  again,  to  take' 
into  its  consideration  the  recommendation  of  the  revenue  system, 
for  the  purpose  of  granting  the  impost  to  the  United  States,  in 
conformity  Avith  the  grants  of  other  states,  so  as  to  enable  the 
United  States  to  carry  it  into  immediate  effect.""  The  governor 
declined  to  accede  to  this  recommendation.'  Congress  repeated 
it,  declaring  that  the  critical  and  embarrassed  state  of  the  finances 
required  that  the  impost  should  be  carried  into  immediate  opera- 
tion, that  the  occasion  Avas  sufficiently  important  and  extraordi- 
nary for  them  to  request  that  the  legislature  slrpuld  be  specially 
convened.'^  The  executive  of  New  York  again  refused  the  re- 
quest of  Congress,  and  the  fate  of  the  impost  system  remained 
suspended  until  the  meeting  of  the  legislature,  at  its  regular  ses- 
sion in  January,  1787.  It  Avas  never  adopted  by  that  state,  and 
consequently  never  took  effect. 


1 Life  of  Hamilton,  II.  385.  a August  11,  1786. 

® The  ground  of  his  refusal  was,  “ that  he  had  not  the  power  to  convene  the 
legislature  before  the  time  fixed  by  law  for  their  stated  meeting,  except  upon 
‘ extraordinary  occasions^''  and  as  the  present  business  had  already  been  particu- 
larly laid  before  them,  and  so  recently  as  at  their  last  session  received  tlieir  de- 
termination, it  cannot  come  witiiin  that  description.”  Life  of  Hamilton,  II.  389. 

^ August  23,  1786. 


CHAPTER  XI. 

1784-1787. 

Infractions  of  the  Treaty  of  Peace. 

The  Treaty  of  Peace,  ratified  on  the  llth  of  January,  1784, 
contained  provisions  of  great  practical  and  immediate  importance. 
One  of  its  chief  objects,  on  the  part  of  the  United  States,  was,  of 
course,  to  effect  the  immediate  withdrawal  of  the  British  troops, 
and  of  every  sign  of  British  authority,  from  the  country  whose 
independence  it  acknowledged.  A stipulation  was  accordingly 
introduced,  by  which  the  king  bound  himself,  with  all  convenient 
speed,  and  without  causing  any  destruction,  or  carrying  away  any 
negroes  or  other  property  of  the  American  inhabitants,  to  with- 
draw all  his  armies,  garrisons,  and  fleets  from  the  United  States, 
and  from  every  post,  place,  and  harbor  within  the  same.  Al- 
though the  ratification  of  the  treaty  was  followed  by  the  depart- 
ure of  the  British  forces  from  the  Atlantic  coast,  many  important 
posts  in  the  Western  country,  within  the  incontestable  limits  of 
the -United  States,  with  a considerable  territory  around  each  of 
them,  were  still  retained.* 

On  the  part  of  England,  it  was  of  great  consequence  to  secure  to 
British  subjects  the  property  and  rights  of  property  of  the  enjoy- 
ment of  which  the  state  of  hostilities  had  deprived  them.  A war 
between  colonies  and  the  parent  state,  which  had  sundered  the  clos- 
est intimacies  of  social  and  commercial  intercourse,  involved  of 
necessity  vast  private  interests.  There  were  two  large  classes  of 
English  creditors  whose  interests  required  protection : the  British 
merchants  to  whom  debts  had  been  contracted  before  the  Revolu- 
tion, and  the  Tories,  who  had  been  obliged  to  depart  from  the  United 
States,  leaving  debts  due  to  them,  and  landed  property,  which  had 
been  seized.  Clear  and  explicit  stipulations  were  inserted  in  the 


- Secret  Journals  of  Congress,  IV.  18G,  187. 


THE  CONFEDERATION. 


m) 

treaty,  in  order  to  protect  these  interests.  It  was  provided  that  cred- 
itors on  either  side  should  meet  with  no  lawful  impediments  to  the 
recovery  of  the  full  value  in  sterling  money  of  all  Iona  fide  debts 
contracted  before  the  date  of  the  treaty.'  It  was  also  agreed  that 
Congress  should  earnestly  recommend  to  the  legislatures  of  the 
respective  states  to  provide  for  the  restitution  of  all  estates, 
rights,  and  properties  which  had  been  confiscated,  belonging  to 
real  British  subjects,  and  to  persons  resident  in  districts  in  the 
])ossession  of  his  majesty’s  arms,  and  who  had  not  borne  arms 
against  the  United  States ; that  persons  of  any  other  description 
should  have  free  liberty  to  go  into  any  of  the  states,  and  remain 
for  the  period  of  twelve  months  unmolested  in  their  endeavors  to 
obtain  the  restitution  of  their  property  and  rights  which  had 
been  confiscated ; that  Congress  should  recommend  to  the  states 
a reconsideration  and  revision  of  all  their  confiscation  laws,  and  a 
restoration  of  the  rights  and  property  of  the  last-mentioned  per- 
sons, on  their  refunding  the  hona  fide  price  which  any  purchaser 
might  have  given  for  them  since  the  confiscation.  It  was  also 
agreed  that  all  persons  having  any  interest  in  confiscated  lands, 
either  by  debts,  marriage  settlements,  or  otherwise,  should  meet 
with  no  lawful  impediment  in  the  prosecution  of  their  just  rights.'' 

It  was  further  provided  ^that  there  should  be  no  future  con- 
fiscations made,  nor  any  prosecutions  commenced  against  any 
person  on  account  of  the  part  he  might  have  ta\en  in  the  war, 
and  that  no  person  should,  on  that  account,  suffer  any  future  loss 
or  damage,  either  in  person,  liberty,  or  property,  and  that  those 
who  might  be  in  confinement  on  such  charges,  at  the  time  of  the 
ratification  of  the  treaty  in  America,  should  be  immediately  set 
at  liberty,  and  the  prosecutions  be  discontinued." 

These  provisions  related  to  a great  subject,  with  which,  in  the 
existing  political  system  of  this  country,  it  was  difficult  to  deal. 
The  action  of  the  states  with  regard  to  some  of  the  interests  in- 
volved in  these  stipulations  had  been  irregular  from  an  early 
period  of  the  war.  The  Kevolutionary  Congress,  on  the  com- 
mencement of  hostilities,  had  suffered  the  opportunity  of  assert- 
ing their  rightful  control  over  the  subject  of  alien  interests, 
except  as  to  property  found  on  the  high  seas,  to  pass  away ; and 


^ Article  IV. 


Article  V. 


3 Article  VI. 


170 


CONSTITUTIONAL  HISTORY. 


the  consequence  was,  that  the  states  had,  on  some  points,  usurped 
an  authority  which  belonged  to  the  Union.  A union  founded  in 
compact,  and  vesting  the  rights  of  war  and  peace  in  Congress, 
was  formed  in  1775  ; and  from  that  time  the  Colonies,  or,  as  they 
afterwards  became,  states,  were  never  rightfully  capable  of  pass- 
ing laws  to  sequester  or  confiscate  the  debts  or  property  of  a 
national  enemy.’  After  the  great  acts  of  national  sovereignty 
which  took  place  in  1775-6,  a British  subject  could  not,  with  any 
propriety,  be  considered  as  the  enemy  of  Massachusetts  or  of 
Virginia;  he  was  the  enemy  of  the  United  States,  and  by  that 
authority  alone,  as  the  belligerent,  was  his  property,  in  strictness, 
liable  to  be  seized,  or  the  debts  due  to  him  sequestered.  But 
neither  the  Bevolutionary  Congress,  nor  that  of  the  Confedera- 
tion, appear  to  have  ever  exercised  the  power  of  confiscating  the 
debts  or  property  of  British  subjects,  within  the  states,  or  to  have 
recommended  such  confiscation  to  the  states  themselves."  On  the 
other  hand,  they  did  not  interfere  when  the  states  saw  fit  to 
do  it. 

With  regard  to  those  inhabitants  of  the  states  who,  adhering 
to  the  British  crown,  had  abandoned  the  country  and  left  prop- 
erty behind  them,  it  cannot  so  clearly  be  affirmed  that  the  states 
should  not  have  dealt  with  their  persons  or  property.  Congress, 
as  we  have  seen,  at  an  early  period  of  the  war,  committed  the 
whole  subject  of  restraining  the  persons  of  the  Tories  to  the  col- 
onies or  states ; and  as  Congress  never  assumed  or  exercised  any 
jurisdiction  over  their  property,  it  was  of  course  left  to  be  dealt 
with  by  the  legislatures  of  the  states,  to  whom  Congress  had  de- 
clared that  their  several  inhabitants  owed  allegiance."  But  as 
these  persons,  by  adhering  to  the  crown,  might  claim  of  the  crowm 
the  rights  and  protection  of  British  subjects,  the  propriety  of  con- 
fiscating or  withholding  their  property  would  remain  for  solution, 
at  the  negotiation  of  the  Treaty  of  Peace,  as  a question  of  gen- 
eral justice  and  equity,  rather  than  of  public  law. 

The  interests  of  both  of  these  classes  of  persons  were  too  im- 
portant to  be  overlooked.  Three  millions  sterling  were  due  from 

1 See  the  report  made  to  Congress  on  this  subject  by  Mr.  Jay,  Secretary  of 
Foreign  Affairs,  October,  178G.  Secret  Journals,  IV.  209.  ^ Ibid. 

3 Resolve  of  June  24,  1776.  Journals,  II.  216.  Ante,  p.  36,  note. 


THE  CONFEDEUATIOK 


171 


the  inhabitants  of  the  colonies  to  merchants  in  Great  Britain,  at 
the  commencement  of  the  war.  At  the  return  of  peace  the  laws 
of  live  of  the  states  Avere  found  either  to  prohibit  the  recovery 
of  the  ])rincipal,  or  to  suspend  its  collection,  or  to  prohibit  the 
I’ccoverv  of  interest,  or  to  make  land  a good  payment  in  place  of 
money.'  The  i)urpose  of  the  treaty  was  to  declare  that  all  Iona 
fide  debts,  contracted  before  the  date  of  the  treaty,  and  due  to 
citizens  of  either  country,  remained  unextinguished  by  the  war; 
and,  consequently,  that  interest,  when  agreed  to  be  paid,  or  paya- 
ble by  the  custom,  or  demandable  as  damages  for  delay  of  pay- 
ment, Avas  justly  due.  Over  this  Avhole  subject  of  foreign  debts 
the  national  soA^ereignty,  of  right,  had  exclusive  control ; for  con- 
fiscation of  the  property  of  a national  enemy  belongs  exclusively 
to  the  power  exercising  the  rights  of  Avar ; and  therefore  Avhat- 
CA'er  state  laAvs  might  have  been  passed  during  the  Avar,  exercis- 
ing rights  Avhich  belonged  to  the  national  soA^ereign,  they  could 
have  no  A^alidity  AAdien  that  soA^ereign  came  to  resume  its  control 
over  the  subject,  and  to  stipulate  that  the  right  of  confiscation,  if 
it  eA^er  existed,  should  not  be  exercised.  The  state  laws,  hoAv- 
ever,  existed,  and  remained  in  conflict  Avith  the  treaty  for  several 
years,  producing  consequences  to  AAdiich  I shall  presently  advert. 

The  fifth  article  of  the  treaty  AA^as  infringed  by  an  act  passed 
by  the  state  of  Ncav  York,  authorizing  actions  for  rent  to  be 
brought  by  persons  who  had  been  compelled  to  leave  their  lands 
and  houses  by  the  enemy,  against  those  AAdio  had  occupied  them 
while  the  enemy  Avere  in  possession,  and  declaring  that  no  mili- 
tary order  or  command  of  the  enemy  should  be  pleaded  in  justi- 
fication of  such  occupation.'' 

The  sixth  article  Avas  also  violated  by  an  act  of  the  same  state, 
AA^^hich  made  those  inhabitants  AA\ho  had  adhered  to  the  enemy,  if 

1 An  act  passed  by  the  le^dslature  of  Massachusetts,  November  9,  1784,  sus- 
pended judgment  for  interest  on  Britisli  debts,  until  Congress  should  have  put  a 
construction  upon  tlie  treaty  declaring  that  it  was  due.  An  act  of  the  state  of 
New  York,  of  July  12,  1782,  restrained  tlie  collection  of  debts  due  to  per- 
sons within  tlie  enemy’s  lines.  Pennsylvania,  soon  after  the  peace,  passed  a law 
restraining  the  levy  of  executions.  Virginia,  at  the  time  of  the  peace,  had  ex- 
isting laws  inhibiting  the  recovery  of  Britisli  debts.  South  Carolina  had  made 
land  a good  payment,  in  place  of  money.  See  Mr.  Jay’s  Report. 

“ Passed  March  17,  1783.  Secret  Journals,  lY.  267. 


172 


CONSTITUTIONAL  HISTORY. 


found  within  the  state,  guilty  of  misprision  of  treason,  and  ren- 
dered them  incapable  of  holding  office,  or  of  voting  at  elections.' 

The  powers  of  the  government  were  entirely  inadequate  to 
meet  this  state  of  things.  The  Confederation  gave  to  the  United 
States  in  Congress  assembled  the  sole  and  exclusive  right  of  deter- 
mining on  peace  and  war,  and  of  entering  into  treaties  and  alli- 
ances. The  nature  of  the  sovereignty  thus  established  made  a 
treaty  the  law  of  the  land,  and  binding  upon  every  member  of 
the  Union;  but  there  existed  no  means  of  enforcing  the  obliga- 
tion. If  the  legislatures  of  the  states  passed  laws  restraining  or 
interfering  with  the  provisions  of  a treaty.  Congress  could  only 
declare  that  they  ought  to  be,  and  recommend  that  they  should 
be,  repealed.  The  simple  and  elfectual  intervention  of  a national 
judiciary,  clothed  with  the  power  of  declaring  void  any  state  legis- 
lation that  conflicted  with  the  national  sovereignty,  and  of  giv- 
ing the  means  of  enforcing  all  rights  which  that  sovereignty  had 
guaranteed  by  compact  with  a foreign  power,  did  not  exist.  Ue- 
sort,  it  is  true,  could  be  had  to  the  state  tribunals ; and,  on  one 
memorable  occasion,  such  resort  was  had  to  them  with  success. 
But  the  legislative  power  assailed  the  independence  of  the  judi- 
ciary, and  indignantly  declared  a decision,  made  with  fairness  by 
a competent  tribunal,  subversive  of  law  and  good  order,  because 
it  recognized  the  paramount  authority  of  a treaty  over  a statute 
of  the  state 

.The  effect  of  such  state  legislation  upon  the  relations  of  the 
two  countries  was  direct  and  mischievous.  The  Treaty  of  Peace 
was  designed,  and  was  adapted,  to  produce  a fair  and  speedy  ad- 
justment of  those  relations,  upon  principles  of  equity  and  justice. 


' Passed  May  12,  1784,  after  the  treaty  had  been  ratified.  Secret  Journals, 
IV.  269-274. 

^ This  happened  in  New  York,  in  a case  under  the  “Trespass  Act,”  where  a 
suit  was  brought  in  the  Mayor’s  Court  of  the  city  of  New  York,  “to  recover  the 
rents  of  property  held  by  tlie  defendant  under  an  order  of  Sir  Henry  Clinton. 
Hamilton,  in  the  defence  of  this  case,  contended,  with  great  power,  that  the  act 
was  a violation  of  the  treaty,  and  the  court  sustained  his  position.  But  the  legis- 
lature passed  resolves,  declaring  the  decision  to  be  subversive  of  law  and  good 
order,  and  recommending  the  appointing  power  “ to  appoint  such  persons  mayor 
and  recorder  of  New  York  as  will  govern  themselves  by  the  known  law  of  the 
land.”  Life  of  Hamilton,  II.  244,  245. 


THE  CONFEDERATION. 


173 


IRit  its  obligations  Avere  reciprocal,  and  it  could  not  execute  itself. 
It  Avas  made,  on  the  one  side,  by  a power  capable  of  performing, 
but  also  capable  of  \A\aiting  for  the  performance  of  the  obligations 
AA'liich  rested  upon  the  other  contracting  party.  On  the  other 
side,  it  AA’as  made  by  a poAA^er  possessed  of  very  imperfect  means 
of  performance,  yet  standing  in  constant  need  of  the  benefit  Avhich 
a full  compliance  Avith  its  obligations  Avould  insure.  After  the 
lapse  of  three  years  from  the  signature  of  the  preliminary  articles, 
and  of  more  than  two  years  from  that  of  the  definitive  treaty, 
the  military  posts  in  the  Avestern  country  Avere  still  held  by  British 
garrisons,  aA^OAvedly  on  account  of  the  infractions  of  the  treaty 
on  our  part.  The  minister  of  the  United  States  at  St.  James’s 
Avas  told,  in  ansAver  to  his  complaints,  that  one  party  could  not  be 
obliged  to  a strict  obserA^ance  of  the  engagements  of  a treaty,  and 
the  other  remain  free  to  deviate  from  its  obligations ; and  that 
Avhenever  the  United  States  should  manifest  a real  determination 
to  fulfil  their  part  of  the  treaty.  Great  Britain  would  be  ready  to 
carry  every  article  of  it  into  complete  effect.'  An  investigation 
of  the  whole  subject,  therefore,  became  necessary,  and  Congress 
directed  the  Secretary  of  Foreign  Affairs  to  make  inquiry  into 
the  precise  state  of  things.  His  report  ascertained  that  the  fourth 
and  fifth  articles  of  the  treaty  had  been  constantly  violated  on 
our  part  by  legislatwe  acts  still  in  existence  and  operation ; that 
on  the  part  of  England,  the  seventh  article  had  been  violated,  by 
her  continuing  to  hold  the  posts  from  Avhich  she  had  agreed  to 
AvithdraAV  her  garrisons,  and  by  carrying  away  a considerable 
body  of  negroes,  the  property  of  American  inhabitants,  at  the 
time  of  the  eA^acuation  of  Hew  York.^ 

The  serious  question  recurred — Avhat  Avas  to  be  done  ? The 
United  States  had  neither  committed  nor  approved  of  any  viola- 
tion of  the  treaty ; but  an  appeal  Avas  made  to  their  justice,  rela- 
tiA^e  to  the  conduct  of  particular  states,  for  which  they  Avere  obliged 
eventually  to  answer.  They  could  only  resolve  and  recommend ; 
and  accordingly,  after  having  declared  that  the  legislatures  of  the 

’ Mr.  John  Adams  was  sent  as  the  first  minister  of  the  United  States  to  the 
Court  of  St.  James  in  1785.  He  received  this  reply  to  a memorial  which  he 
addressed  to  the  British  government,  on  the  subject  of  the  western  posts,  in 
February,  1786.  Secret  Journals,  IV.  187. 

- Secret  Journals,  IV.  209. 


m 


CONSTITUTIONAL  HISTORY. 


states  could  not,  of  right,  do  anything  to  explain,  interpret,  or  limit 
the  operation  of  a treaty.  Congress  recommended  to  the  states  to 
pass  a general  law,  repealing  all  their  former  acts  that  might  be 
repugnant  to  the  treaty,  and  leaving  to  their  courts  of  justice  to 
decide  causes  that  might  arise  under  it,  according  to  its  true  intent 
and  meaning,  by  determining  what  acts  contravened  its  provisions.* 
This  recommendation  manifestly  left  the  interests  of  the  Union 
exposed  to  two  hazards  : the  one,  that  the  legislatures  of  the  states 
might  not  pass  the  repealing  statute,  which  would  submit  the 
proper  questions  to  their  courts,  and  the  other,  that  their  courts 
might  not  decide  with  firmness  and  impartiality  between  the 
policy  of  the  state,  on  the  one  hand,  and  the  interests  of  foreigners 
and  obnoxious  Tories,  on  the  other. 

But  this  was  all  that  could  be  done,  and  partial  success  only 
followed  the  effort.  Most  of  the  states  passed  acts,  in  compliance 
with  the  recommendation  of  Congress,  to  repeal  their  laws  which 
prevented  the  recovery  of  British  debts.""  But  the  state  of  Vir- 
ginia, although  it  passed  such  an  act,  suspended  its  operation  until 
the  governor  of  the  state  should  issue  a proclamation,  giving  notice 
that  Great  Britain  had  delivered  up  the  western  posts,  and  was 
taking  measures  for  the  further  fulfilment  of  the  treaty,  by  de- 
livering up  the  negroes  belonging  to  the  citizens  of  that  state, 
which  had  been  carried  away,  or  by  making  compensation  for 
their  value.'  The  two  countries  were  thus  brought  to  a stand 
in  their  efforts  to  adjust  the  matters  in  dispute,  and  the  western 
posts  remained  in  the  occupation  of  British  garrisons,  inflaming 
the  hostile  temper  of  the  Indian  tribes,  and  enhancing  the  diffi- 
culty of  settling  the  vacant  lands  in  the  fertile  region  of  the  Great 
Lakes.'  

* March  21, 1787. 

2 New  Hampshire,  Massachusetts,  Rhode  Island,  Connecticut,  Delaware,  Mary- 
land, Virginia,  and  North  Carolina  passed  such  acts. 

^ Pitkin’s  History  of  the  United  States,  II.  198. 

* Marshall’s  Life  of  Washington,  V.  G7,  G8. 


CHAPTER  XII. 

1786-1787. 

ISTo  Security  afforded  by  the  Confederation  to  the  State 
Governments. — Shays’s  Rebellion  in  Massachusetts,  and  its 
Kindred  Disturbances. 

Xo  federative  government  can  be  of  great  permanent  value 
'which  is  not  so  constructed  that  it  may  stand,  in  some  measure, 
as  the  common  sovereign  of  its  members,  able  to  protect  them 
against  internal  disorders,  as  well  as  against  external  assaults.  The 
Confederation  undertook  but  one  of  these  great  duties.  It  was 
formed  at  a time  when  the  war  with  England  was  the  great  object 
of  concern  to  the  revolted  colonies,  and  when  they  felt  only  the 
exigencies  which  that  war  created.  Hence  its  most  important 
powers,  as  well  as  its  leading  purpose,  concerned  the  common 
cause  of  resistance  to  a foreign  domination.  A federal  league  of 
states  independent  of  each  other,  formed  principally  for  mutual 
defence  against  a common  enemy,  was  all  that  succeeded  to  the 
general  superintending  power  of  the  British  crown,  by  which  the 
internal  affairs  of  each  of  them  had  always  been  regulated  and 
controlled,  in  the  last  resort.  When  the  tie  was  broken  by  which 
they  had  been  held  to  the  parent  state,  each  of  them  created  for 
itself  a new  government,  resting  for  its  basis  on  the  popular  will, 
and  deriving  its  authority  directly  from  the  people ; but  none  of 
them  provided  for  the  creation  of  a power,  external  to  itself,  which 
might  stand  as  the  guarantor  and  protector  of  their  new  institu- 
tions, and  secure  the  principles  on  which  they  rested  against  vio- 
lence and  overthro'w.  Yet  the  constitutions  thus  formed,  from 
their  peculiar  nature,  eminently  needed  the  safeguards  which  such 
a power  could  afford. 

These  constitutions  were  admirably  constructed.  They  con- 
tained principles  imperfectly  known  to  the  ancient  governments ; 
found  in  modern  times  only  in  the  government  of  England ; and 


176 


CONSTITUTIONAL  HISTORY. 


applied  there  with  far  less  consistency  and  completeness.  They 
embraced  the  regular  distribution  of  political  power  into  distinct 
departments  ; legislative  checks  and  balances,  by  means  of  two 
co-ordinate  branches  of  the  legislature;  a judiciary  in  general 
holding  office  during  good  behavior ; and  the  representation  of 
the  people  in  the  legislature,  by  deputies  of  their  own  actual  elec- 
tion, in  which  the  theory  of  such  representation  was  more  per- 
fectly carried  into  practice  than  it  had  ever  been  in  the  country 
from  which  it  was  derived.  But  the  fundamental  principle  on 
which  they  all  rested,  and  without  which  they  could  not  maintain 
existence,  required  means  of  defence.  They  were  established  upon 
the  great  doctrine  that  it  is  the  right  of  every  political  society 
to  govern  itself,  and  for  the  purposes  of  such  self-government  to 
create  such  constitutions  and  ordain  such  fundamental  laws  as  its 
own  judgment  and  its  owm  intelligent  choice  may  find  best  suited 
to  its  owm  interests.  But  society  can  act  only  by  an  expression 
of  the  aggregate  will  of  its  members ; and  as  there  may  be  mem- 
bers who  dissent  from  the  view^s  and  determinations  of  the  great 
mass  of  society,  and  it  is  therefore  necessary  to  decide  wdth  wffiom 
the  power  of  compelling  obedience  resides — since  there  must  be 
obedience  in  order  that  there  may  be  peace— nature  and  reason 
have  determined  that  this  power  is  to  reside  wdth  a majority  of 
the  members.  The  American  constitutions,  therefore,  are  founded 
wholly  upon  the  principle  that  a majority  expresses  the  wdll  of 
the  whole  society,  and  may  establish,  change,  and  abrogate  forms 
of  government  at  its  pleasure."  It  follow^s,  as  a necessary  deduc- 
tion from  this  fundamental  doctrine,  that  so  soon  as  society  has 
acted  in  the  formation  and  establishment  of  a government,  upon 

1 Gil)bon,  with  that  graceful  satire  whicli  knew  liow  to  hit  two  objects  with 
the  same  stroke  of  liis  pen,  describes  hereditary  monarchy  as  “ an  expedient 
which  deprives  the  multitude  of  the  dangerous,  and  indeed  the  ideal,  power  of 
giving  themselves  a master.”  The  historian  of  the  Decline  and  Fall  began  to 
publish  his  great  work  just  as  the  American  Revolution  burst  upon  the  world. 
Since  that  sentence  was  penned,  the  experiment  of  a system  by  which  the  multi- 
tude give  to  themselves  a master,  in  the  constitutional  organs  of  their  own  will, 
has  had  a fair  trial.  We  may  not  say  that  its  trial  is  past,  or  that  the  system  is 
established  beyond  the  possibility  of  further  dangers.  But  Mm  may  with  a just 
pride  point  to  its  escape,  in  the  days  of  its  first  establishment  and  greatest  dan- 
ger, and  to  the  securities  which  the  Constitution  of  the  United  States  noM^  affords 
against  similar  perils  when  they  threaten  the  constitutions  of  the  states. 


T II  E CONE  E I)  E K A T I ()  N. 


177 


this  principle,  no  change  can  take  })lace  but  by  a new  expression 
of  the  will  of  society  through  the  voice  of  a majority ; and  whether 
a majority  desires  or  has  actually  decreed  a change,  is  a fact  that 
must  be  made  certain,  and  can  only  be  made  certain  in  one  of 
two  modes,  either  by  the  evidence  and  through  the  channels 
which  the  society  has  previously  ordained  for  this  purpose,  or 
by  the  submission  of  all  its  members  to  a violent  and  successful 
revolution. 

The  first  constitution  of  Massachusetts  did  not  designate  any 
mode  in  which  it  was  to  be  amended  or  changed.  But  no  peace- 
able change  can  take  place  in  any  government  founded  on  the 
expressed  Avill  of  a majority  of  the  people,  consistently  with  the 
principle  on  which  it  had  been  established,  until  it  has  been  as- 
certained, in  some  mode,  that  a change  is  demanded  by  the  same 
authority.  The  vital  importance  of  ascertaining  this  fact  with 
precision  was  not  so  clearly  perceived  at  that  early  period  as  it 
is  now. 

Seizing  upon  the  newly  established  doctrine,  which  made  them 
the  sources  of  all  political  power,  the  people  did  not  at  once  ap- 
prehend the  rule  which  preserves  and  upholds  that  power,  and 
makes  the  doctrine  itself  both  practicable  and  safe.  Hence,  when 
troubles  arose,  individuals  were  led  to  suppose  that  they  had  only 
to  declare  a grievance,  to  demand  a change,  and  to  compel  a com- 
pliance with  their  demand  by  force.^  So  far  as  the}^'  reasoned  at 
all,  they  persuaded  themselves  that,  as  their  government  was  the 
creation  of  the  people,  by  their  own  direct  act,  bodies  of  the  peo- 
ple could  assemble  in  their  primary  capacity,  and,  by  obstructing 
any  of  its  functions  which  they  connected  with  a particular  griev- 
ance, produce  a reform,  which  the  people  have  always  a right  to 
make.  By  overlooking,  in  this  manner,  the  only  safe  and  legiti- 
mate mode  in  which  the  popular  will  can  be  really  ascertained, 
they  passed  into  the  mischiefs  of  anarchy  and  rebellion,  mistak- 
ing the  voices  of  a minority  for  the  ascertained  will  of  society. 

To  these  tendencies  the  recently  established  governments  of 
Hew  England,  where  the  spirit  of  liberty  was  most  vigorous,  could 
oppose  no  efficient  check ; while,  in  any  open  outbreak,  the}^  were 
without  any  external  defender  on  whose  power  they  could  lean. 
The  Confederation  succeeded  to  the  Eevolutionary  Congress,  as 
we  have  more  than  once  had  occasion  to  observe,  with  less  power 
I.— 12 


178 


CONSTITUTIONAL  HISTORY. 


than  its  predecessor  might  have  exercised.  It  was  formed  by  a 
Avritten  constitution,  yet  it  Avas,  strictly  speaking,  scarcely  a gOA"- 
ernment.  It  Avas  a close  union  of  the  states ; but  it  Avas  a union 
from  Avhich  all  powers  had  been  jealously  Avithheld  Avhich  Avould 
have  enabled  it  to  interfere  Avith  vigor  and  success  betAveen  an 
insurgent  minority  of  the  people  of  a state  and  its  laAvful  rulers. 
The  Kevolutionary  Congress  Avas  once  possessed  of  such  large, 
indefinite  powers,  that,  upon  principles  of  public  necessity,  it 
might  have  assumed,  in  a great  emergency,  to  hold  a direct  re- 
lation to  the  internal  concerns  of  any  colony.  It  was,  in  fact, 
looked  to,  in  some  degree,  for  direction  in  the  formation  of  the 
state  governments,  after  it  had  broken  the  bonds  of  colonial 
allegiance  to  the  English  croAvn ; and  it  might  very  properly  have 
undertaken  to  support  the  governments  Avhose  establishment  it 
had  recommended.  But  such  a relation  betAveen  the  early  states 
and  the  continental  poAver,  though  it  certainly  existed  in  1776, 
Avas  soon  lost  in  the  independent  and  jealous  attitude  Avhich  they 
began  to  occupy,  and  the  Union  rapidly  assumed  a position  Avhere 
the  character  of  sovereignty  Avhich  it  appeared  to  Avear  when  it 
promulgated  the  Declaration  of  Independence  Avas  scarcely  to  be 
discerned.  At  no  period  in  the  history  of  the  Confederation  did 
it  act  upon  the  internal  concerns  or  condition  of  a state.  Its 
Avritten  articles  of  union  hardly  admitted  of  a construction  which 
Avould  have  enabled  it  to  do  so,  and  certainly  contained  no  ex- 
press delegation  of  such  a poAver. 

’At  the  same  time,  some  of  the  state  governments,  during  the 
period  of  Avhich  Ave  are  treating,  Avere  singularly  exposed  to  the 
dangers  of  anarchy.  Hone  of  them  had  any  standing  forces  of 
any  consequence,  three  years  after  the  peace,  and  the  HeAv  Eng- 
land States  had  no  military  forces  Avdiatever  but  their  militia.  Ho 
state  could  call  upon  its  neighbors  for  aid  in  quelling  an  insurrec- 
tion, for  their  militia  Avould  not  have  obeyed  the  summons,  if  it 
had  been  issued ; and  no  state  could  call  upon  the  federal  govern- 
ment, in  such  an  emergency,  Avith  any  certainty  of  success  in  the 
application.' 


1 A power  to  interfere  in  the  internal  concerns  of  a state  could  only  have 
been  exercised  by  a broad  construction  of  the  third  of  the  Articles  of  Confeder- 
ation, which  was  in  these  words;  “The  said  states  hereby  severally  enter  into 


THE  CONFEDERATION. 


179 


In  such  a state  of  things,  the  year  178G  witnessed  an  insur- 
rection in  Massachusetts  of  a very  dangerous  character,  which, 
from  tlie  fortunate  circumstance  that  her.  counsels  were  then 
guided  by  a man  of  singular  energy  and  firmness  of  character, 
she  was  just  able  to  subdue.  The  remote  causes  of  this  insurrec- 
tion lie  too  far  from  the  path  of  our  main  subject  to  be  more 
than  summarily  stated. 

At  the  close  of  the  Eevolutionary  war  the  state  of  Massa- 
chusetts was  oppressed  with  an  enormous  debt.  At  the  breaking 
out  of  that  war  the  debt  of  the  colony  was  less  than  one  hun- 
dred thousand  pounds.  The  private  debt  of  the  state,  in  the 
year  1780,  was  one  million  three  hundred  thousand  pounds,  be- 
sides two  hundred  and  fifty  thousand  pounds  due  to  the  officers 
and  soldiers  of  the  state  line  of  the  Eevolutionary  army.  The 
state’s  proportion  of  the  federal  debt  was  not  less  than  one  mill- 
ion and  a half  of  pounds.^  According  to  the  customary  mode  of 
taxation,  one  third  of  the  whole  debt  was  to  be  paid  by  the  rat- 
able polls,  which  scarcely  exceeded  ninety  thousand."  The  Eevo- 
lution  had  made  the  people  of  Massachusetts  familiar  with  the 
great  general  doctrines  of  liberty  and  human  rights ; but  it  had 


a firm  league  of  friendship  with  each  other,  for  their  common  defence,  the  secu- 
rity of  their  liberties,  and  their  mutual  and  general  welfiire ; binding  themselves 
to  assist  each  other  against  all  force  otfered  to  or  attacks  made  upon  them,  or 
any  of  them,  on  account  of  religion,  sovereignty,  trade,  or  any  other  pretence 
whatever.”  When  tliis  is  compared  with  the  clear  and  explicit  provision  in  tlie 
Constitution,  by  which  it  is  declared  that  ‘‘the  United  States^shall  guarantee  to 
every  state  in  this  Union  a republican  form  of  government,’’’’  tliere  can  be  no 
wonder  that  a doubt  was  felt  in  the  Congress  of  1786-87  as  to  their  powers  upon 
this  subject.  It  is  true  that  the  Massachusetts  delegation,  when  they  laid  be- 
fore Congress  the  measures  which  had  been  taken  by  the  state  government  to 
suppress  the  insurrection,  expressed  the  confidence  of  the  legislature  that  tlie 
firmest  support  and  most  effectual  aid  would  have  been  afforded  by  the  United 
States,  had  it  been  necessary,  and  asserted  tliat  sucli  support  and  aid  were  ex- 
pressly and  solemnly  stipulated  by  the  Articles  of  Confederation  (Journals, 
XII.  20.  March  9, 1787).  But  this  was  clearly  not  the  case;  and  it  was  not 
generally  supposed  in  Congress  that  the  power  existed  by  implication.  All 
that  was  done  by  Congress  towards  raising  troops,  at  the  time  of  the  insurrec- 
tion, was  done  for  the  ostensible  purpose  of  protecting  the  frontiers  against  an 
Indian  invasion,  as  we  shall  see  hereafter. 

^ Minot’s  History  of  the  Insurrection,  p.  6. 


Ibid. 


180 


CONSTITUTIONAL  HISTORY. 


given  them  little  insight  into  the  principles  of  revenue  and  finance, 
and  little  acquaintance  with  the  rules  of  public  economy.  No 
sufficient  means,  therefore,  to  relieve  the  people  from  direct  taxa- 
tion, by  encouraging  a revival  of  trade  and  at  the  same  time 
drawing  from  it  a revenue,  were  devised  by  the  legislature.  The 
exports  of  the  state,  moreover,  had  suffered  a fearful  diminution. 
The  fisheries,  which  had  been  a fruitful  source  of  prosperity  to 
the  colony,  had  been  nearly  destroyed  by  the  w^ar,  and  the  mar- 
kets of  the  West  Indies  and  of  Europe  were  now  closed  to  the 
products  of  this  lucrative  industry,  by  which  wealth  had  formerly 
been  drawn  from  the  wastes  of  the  ocean.  The  state  had  scarcely 
any  other  commodity  to  exchange  for  the  precious  metals  in  for- 
eign commerce.  Its  agriculture  yielded  only  a scanty  support  to 
its  population,  if  it  yielded  so  much ; its  manufactures  were  in  a 
languishing  condition ; and  its  carrying  trade  had  been  driven 
from  the  seas  during  the  war,  and  was  afterwards  annihilated 
by  the  oppressive  policy  of  England  which  succeeded  the  peace. 
The  people  were  every  year  growing  poorer  than  they  had  been 
the  year  before,  and  taxes,  onerous  taxes,  beyond  their  resources 
and  always  odious,  were  pressing  upon  them  with  a constantly 
increasing  accumulation,  from  which  the  political  state  of  the 
country  seemed  to  promise  no  relief.’ 

But  the  demand  of  the  tax-gatherer  was  not  the  sole  burden 
which  individuals  had  to  encounter.  Private  debts  had  accumu- 
lated during  the  war,  in  almost  as  large  a ratio  as  the  public 
obligations.  The  collection  of  such  debts  had  been  generally  sus- 
pended v>^hile  the  struggle  for  political  freedom  was  going  on; 
but  that  struggle  being  over,  creditors  necessarily  became  active, 
and  were  often  obliged  to  be  severe.  Suits  were  multiplied  in  the 
courts  of  law  beyond  all  former  precedent,  and  the  first  effect  of 
this  sudden  influx  of  litigation  was  to  bring  popular  odium  upon 
the  whole  machinery  of  justice.  In  a state  of  society  approach- 
ing so  nearly  to  a pure  democracy,  the  class  of  debtors,  if  numer- 
ous, must  be  politically  formidable.  They  had  begun  to  be  so 
before  the  close  of  the  war.  Their  clamors  and  the  supposed 
necessity  of  the  case  led  the  legislature,  in  1Y82,  to  a violation  of 


' See  the  next  chapter  for  some  particulars  respecting  tlie  trade  of  Massa- 
chusetts, 


THE  CONFEDERATION. 


181 


])i*inciple,  in  a law  known  as  the  Tender  Act,  by  which  executions 
for  debt  might  be  satisfied  by  certain  articles  of  })roperty,  to  be 
taken  at  an  aj)praisemeiit.  This  law  was  limited  in  its  operation 
to  one  year ; but  in  the  course  of  that  year  it  taught  the  debtors 
their  strength,  and  gave  the  first  signal  for  an  attack  upon  prop- 
erty. A levelling,  licentious  spirit,  a restless  desire  for  change, 
and  a disposition  to  throw  down  the  barriers  of  private  rights,  at 
leimtli  broke  forth  in  conventions,  which  first  voted  themselves 

O ■ 

to  be  tlie  people,  and  then  declared  their  proceedings  to  be  consti- 
tutional. At  these  assemblies  the  doctrine  was  publicly  broached 
that  property  ought  to  be  common,  because  all  had  aided  in  sav- 
ing it  from  confiscation  by  the  power  of  England.  Taxes  were 
voted  to  be  unnecessary  burdens,  the  courts  of  justice  to  be  in- 
tolerable grievances,  and  the  legal  profession  a nuisance.  A re- 
vision of  the  constitution  was  demanded,  in  order  to  abolish  the 
Senate,  reform  the  representation  in  the  House,  and  make  all  the 
civil  officers  of  the  government  eligible  by  the  people. 

A passive  declaration  of  their  grievances  did  not,  however, 
content  the  disaffected  citizens  of  Massachusetts.  They  pro- 
ceeded to  enforce  their  demands.  The  courts  of  justice  were  the 
nearest  objects  for  attack,  as  well  as  the  most  immediately  con- 
nected with  the  chief  objects  of  their  complaints.  Armed  mobs 
surrounded  the  court-houses  in  several  counties,  and^  sometimes 
effectually  obstructed  the  sessions  of  the  courts.  These  acts  were 
repeated,  until,  in  the  autumn  of  1786,  the  insurrection  broke  out 
in  a formidable  manner  in  the  western  part  of  the  state.  The 
insurgents  actually  embodied,  and  in  arms  against  the  govern- 
ment, in  the  month  of  December,  in  the  counties  of  Worcester 
and  Hampshire,  numbered  about  fifteen  hundred  men,  and  were 
headed  by  one  Daniel  Shays,  who  had  been  a captain  in  the  Con- 
tinental army.^ 

The  executive  chair  of  the  state  was  at  that  time  filled  by 
James  Bowdoin,  a statesman,  firm,  prudent,  of  high  principle, 
and  devoted  to  the  cause  of  constitutional  order.  In  the  first 
stages  of  the  disaffection,  he  had  been  thwarted  by  a House  of 
Kepresentatives  in  which  the  majority  were  strongly  inclined  to 
sympathize  with  the  general  spirit  of  the  insurgents;  but  the 


Minot's  History  of  the  Insurrection,  p.  82  et  seq. 


182 


CONSTITUTIONAL  HISTORY. 


Senate  bad  supported  him.  Afterwards,  when  the  movement 
grew  more  dangerous,  the  legislature  became  more  reconciled  to 
the  use  of  vigorous  means  to  vindicate  the  authority  of  the  gov- 
ernment, and  a short  time  before  it  actually  took  the  form  of  an 
armed  and  organized  rebellion  against  the  commonwealth,  they 
had  encouraged  the  governor  to  use  the  powers  vested  in  him 
by  the  constitution  to  enforce  obedience  to  the  laws.  The  ex- 
ecutive promptly  met  the  emergency.  A body  of  militia  was 
marched  against  the  insurgents,  and  by  the  middle  of  February 
they  were  dispersed  or  captured,  with  but  little  loss  of  life. 

The  actual  resources  of  the  state,  however,  to  meet  an  emer- 
gency of  this  kind,  were  feeble  and  few.  A voluntary  loan,  from 
a few  public-spirited  individuals,  supplied  the  necessary  funds,  of 
which  the  treasury  of  the  state  was  wholly  destitute.^  At  one 
time,  so  general  was  the  prevalence  of  discontent,  even  among 
the  militia  on  whom  the  government  were  obliged  to  rely,  that 
men  were  known  openly  to  change  sides  in  the  field,  when  the 
first  bodies  of  troops  Avere  called  out."^  Had  the  government  of 
the  state  been  in  the  hands  of  a person  less  firm  and  less  careless 
of  popularity  than  Bowdoin,  it  would  have  been  given  up  to 
anarchy  and  civil  confusion.  The  political  situation  of  the  coun- 
try did  not  seem  to  admit  of  an  application  to  Congress  for  direct 
assistance,  and  there  is  no  reason  to  suppose  that  such  an  applica- 
tion Avould  have  been  effectively  answered,  if  it  had  been  made." 

When  the  neAVS  of  the  disturbances  in  Massachusetts,  in  the 
autumn  of  1780,  Avas  received  in  Congress,  it  happened  that  intel- 
ligence from  the  AA^estern  country  indicated  a hostile  disposition 
on  the  part  of  several  Indian  tribes  against  the  frontier  settle- 
ments. A resol A^e  Avas  unanimously  adopted,  directing  one  thou- 
sand three  hundred  and  forty  additional  troops  to  be  raised,  for 
the  term  of  three  years,  for  the  protection  and  support  of  the 
states  bordering  on  the  Avestern  territory  and  the  settlements  on 
and  near  the  Mississippi,  and  to  secure  and  facilitate  the  surA^ey- 

’ Governor  Bowdoin’s  Speech  to  the  legislature,  February  3, 1787. 

2 Minot. 

^ 111  the  spring  of  1786  the  state  had  asked  the  loan  from  Congress  of  sixty 
pieces  of  field  artillery.  The  application  was  refused,  by  the  negative  vote  of 
six  states  out  of  eight,  one  being  divided,  and  the  delegation  from  Massachu- 
setts alone  supporting  it.  Journals,  XI.  G5-G7.  April  19, 1786. 


THE  CONFEDERATION. 


183 


ing  and  soiling  of  the  public  lands.'  From  the  fact  that  the 
whole  of  these  troo])s  were  ordered  to  be  raised  by  the  four  New 
England  States  and  one  half  of  them  by  the  state  of  Massachu- 
setts, and  from  other  circumstances,  it  is  quite  apparent  that  the 
object  assigned  was  an  ostensible  one,  and  that  Congress  intended 
by  this  resolve  to  strengthen  the  government  of  that  state  and  to 
overawe  the  insurgents."*  But  this  motive  could  not  be  publicly 
announced.  Tlie  enlistment  went  on  very  slowly,  however,  until 
February,  when  a motion  was  made  by  Mr.  Pinckney  of  South 
Carolina  to  stop  it  altogether,  upon  the  ground  that  the  insurrec- 
tion in  Massachusetts,  the  real,  though  not  the  ostensible,  object 
of  the  resolve,  had  been  crushed.*  Mr.  King  of  Massachusetts 
earnestly  entreated  that  the  federal  enlistments  might  be  permit- 
ted to  go  on,  otherwise  the  greatest  alarm  would  be  felt  by  the 
government  of  the  state  and  its  friends,  and  the  insurrection 
might  be  rekindled.  Mr.  Madison  advised  that  the  proposal  to 
rescind  the  order  for  the  enlistments  should  be  suspended,  to 
await  the  course  of  events  in  Massachusetts.  At  the  same  time 
he  admitted  that  it  would  be  difficult  to  reconcile  an  interference 
of  Congress  in  the  internal  controversies  of  a state  with  the  tenor 
of  the  Articles  of  Confederation."  The  whole  subject  was  post- 
poned, and  the  direct  question  of  the  power  of  Congress  was  not 
acted  upon.  In  the  convention  which  framed  the  Constitution  it 
was  very  early  declared  that  the  Confederation  had  neither  con- 
stitutional power  nor  means  to  interfere  in  case  of  a rebellion  in 
any  state." 

No  subsequent  generation  can  depict  to  itself  the  alarm  which 
these  disturbances  spread  through  the  country,  and  the  extreme 
peril  to  which  the  whole  fabric  of  society  in  New  England  was 
exposed.  The  numbers  of  the  disaffected  in  Massachusetts  amount- 
ed to  one  fifth  of  the  inhabitants  in  several  of  the  populous  coun- 
ties. Their  doctrines  and  purposes  were  embraced  by  many 

' Journals,  XI.  258.  October  30,  1786. 

* It  was  well  understood,  for  instance  in  the  legislature  of  Virginia,  that 
tliis  was  the  real  purpose;  for  l^Ir.  Madison  says  that  this  consideration  inspired 
tlie  ardor  with  which  they  voted,  towards  their  quota  of  the  funds  called  for  to 
defray  the  expenses  of  this  levy,  a tax  on  tobacco,  which  would  scarcely  have 
been  granted  for  any  other  purpose,  as  its  operation  was  very  unequal.  Elliot’s 
Debates,  V.  95.  February  19, 1787.  s 4 ^27. 


184 


CONSTITUTIONAL  HISTORY. 


young,  active,  and  desperate  men  in  Ehode  Island,  Connecticut, 
and  New  Hampshire,  and  the  whole  of  this  faction  in  the  four 
states  was  capable  of  furnishing  a body  of  twelve  or  fifteen  thou- 
sand men,  bent  on  annihilating  property,  and  cancelling  all  debts, 
public  and  private.' 

But  this  great  peril  was  not  without  beneficial  consequences. 
It  displayed,  at  a critical  moment,  when  a project  of  amending 
the  Confederation  for  other  purposes  was  encountering  much  oppo- 
sition, a more  dangerous  deficiency  than  any  to  which  the  public 
mind  had  hitherto  been  turned.  While  thoughtful  and  consider- 
ate men  were  speculating  upon  the  causes  of  diminished  prosperity 
and  the  general  feebleness  of  the  system  of  government,  a gulf 
suddenly  yawned  beneath  their  feet,  threatening  ruin  to  the  whole 
social  fabric.  It  was  but  a short  time  before  that  the  people  of  this 
country  had  shed  their  blood  to  obtain  constitutions  of  their  own 
choice  and  making.  Now  they  seemed  as  ready  to  overturn  them 
as  they  had  once  been  to  extort  from  tyranny  the  power  of  cre- 
ating and  erecting  them  in  its  place.  It  was  manifest  that  to 
achieve  the  independence  of  a country  is  but  half  of  the  great 
undertaking  of  liberty ; that,  after  freedom,  there  must  come  secu- 
rity, order,  the  Avise  disposal  of  power,  and  great  institutions,  on 
Avhich  society  may  repose  in  safety.  It  Avas  clear  that  the  Federal 
Union  alone  could  certainly  uphold  the  libert}^  Avhich  it  had  gained 
for  the  people  of  the  states,  and  that,  to  enable  it  to  do  so,  it  must 
become  a government.'' 

From  his  retreat  at  Mount  Yernon,  Washington  obsen^ed  the 
progress  of  these  disorders  Avith  intense  anxiety.  To  him  they 
carried  the  strongest  evidence  of  a Avant  of  energy  in  the  system 
of  the  Federal  Union.  They  did  more  than  all  things  else  to  con- 
vince him  that  “ a liberal  and  energetic  constitution,  Avell  checked 


^ This  was  the  estimate  of  their  mimbers  formed  by  General  Knox,  on  care- 
ful inquiry,  and  by  him  given  to  Wasliington.  See  a letter  from  Washington 
to  Mr.  Madison.  Works,  IX.  207. 

^Washington,  writing  to  Henry  Lee  in  Congress,  October  31,  1780,  says: 
“ You  talk,  my  good  sir,  of  employing  influence  to  appease  the  present  tumults 
in  Massachusetts.  I know  not  where  that  influence  is  to  be  found,  or,  if  attain- 
able, that  it  would  be  a proper  remedy  for  the  disorders.  Influence  is  not  (jov.- 
ernmeiit.  Let  us  have  a government  by  which  our  lives,  lil)erties,  and  ])roperties 
will  be  secured,  or  let  us  know  the  worst  at  once.”  Works,  IX.  204. 


THE  C O N F E I)  E 11  A T I O N. 


185 


and  well  watched  to  prevent  encroaclnncnts,  might  restore  us  to 
that  degree  of  res[)ectabihty  and  consecpience  to  which  Ave  had 
the  fairest  prospect  of  attaining.’’*  lie  was  kei)t  accur’ately  in- 
formed of  the  state  of  things  in  New  England,  and  the  probabil- 
itv  that  he  Avould  be  obliged  to  come  forward  and  take  an  active 
part  in  the  support  of  order  against  civil  discord  was  directly  inti- 
mated to  him."  He  had  foreseen  the  ])ossibility  of  this ; but  the 
successful  issue  of  the  struggle  relieved  him  from  the  contempla- 
tion of  this  painful  task,  and  left  to  him  only  the  duty  of  giving 
the  whole  weight  of  his  influence  and  presence  in  the  Convention, 
Avhich  was  to  assemble  in  the  folloAving  May,  for  the  revision  of 
the  federal  system. 


» Works,  IX.  208. 


2 Ibid.  221. 


CHAPTEE  XIII. 

Origin  and  Necessity  of  the  Power  to  Regulate  Commerce. 

Among  all  the  causes  which  led  to  the  establishment  of  the 
Constitution  of  the  United  States  there  is  none  more  important, 
and  none  that  is  less  appreciated,  than  the  inability  of  the  Con- 
federation to  manage  the  foreign  commerce  of  the  country.  We 
have  seen  that,  when  the  Articles  of  Confederation  were  proposed 
for  adoption  by  the  states,  the  state  of  New  Jersey  remonstrated 
against  the  absence  of  all  provision  for  placing  the  foreign  trade 
of  the  states  under  the  regulation  of  the  federal  government.  But 
this  remonstrance  was  without  effect,  and  the 'instrument  went 
into  operation  in  1781,  with  no  other  restriction  upon  the  powers 
of  the  states  to  regulate  trade  according  to  their  pleasure  than  a 
prohibition  against  levying  imposts  or  duties  which  would  inter- 
fere with  the  treaties  then  proposed. . While  the  war  continued, 
the  subject  was  of  comparatively  little  importance.  But  the 
return  of  peace  found  this  country  capable  of  becoming  a great 
commercial  as  well  as  agricultural  nation ; and  it  could  not  be 
overlooked  that  its  government  possessed  very  inadequate  means 
for  establishing  such  relations  with  foreign  powers  as  would  best 
develop  its  resources  and  conduce  to  its  internal  harmony  and 
prosperity.  How  early  this  great  interest  had  attracted  the  atten- 
tion of  those  who  \vere  most  capable  of  enlarged  and  statesman- 
like views  of  the  actual  nature  of  the  Union  and  the  wants  of  the 
states  there  are  some  means  of  determining.  We  know  that,  be- 
fore the  peace,  Hamilton  saw  clearly  that  it  v/as  essential  for 
the  United  States  to  be  vested  with  a general  superintendence  of 
trade,  both  for  purposes  of  revenue  and  regulation ; that  he  fore- 
saw the  encouragement  of  our  own  products  and  manufactures 
by  means  of  general  prohibitions  of  particular  articles  and  a judi- 
cious arrangement  of  duties,  and  that  this  could  only  be  effected 
by  a central  authority ; and  that  the  due  observance  of  an}"  com- 


i 


THE  CONFEDERATION. 


187 


inei’cial  treaty  which  the  United  States  might  make  with  a foreign 
power  could  not  he  expected,  if  the  different  states  retained  the 
regulation  of  their  own  trade,  and  thus  held  the  practical  con- 
struction of  treaties  in  their  OAvn  hands.* 

But  it  does  not  appear  that,  among  the  other  principal  states- 
men of  the  Kevolution,  these  ideas  had  made  much  progress  until 
the  entire  incapacity  of  the  Confederation  to  negotiate  advan- 
tageous commercial  treaties,  for  want  of  adequate  power  to  en- 
force them,  had  displayed  the  actual  weakness  of  its  position,  and 
the  oppressive  measures  of  other  countries  had  taught  them  that 
there  was  but  one  remedy  for  such  evils.  Then,  indeed,  they  saw 
that  the  United  States  could  have  a standing  as  a commercial 
power  among  the  other  powers  of  the  world  only  when  their  rep- 
resentatives could  be  received  and  dealt  with  as  the  representa- 
tives of  one,  and  not  of  thirteen  sovereignties ; and  that  if  the 
measures  of  other  countries,  injurious  to  the  trade  of  America, 
were  to  be  counteracted  at  all,  it  must  be  by  a power  that  could 
prohibit  access  to  all  the  states  alike,  or  grant  it  as  to  all,  as  cir- 
cumstances might  require."* 


' Life  of  Hamilton,  II.  233,  234.  See  also  his  resolutions  on  the  defects  of 
the  federal  government,  intended  to  be  offered  in  Congress  in  1783,  and  espe- 
cially the  eighth  resolution.  Works  of  Hamilton,  II.  269. 

2 Hamilton  himself,  in  some  papers  which  he  published  in  1781,  under  the 
title  of  “ The  Continentalist,”  gave  the  general  sum  of  American  statesmanship 
and  its  opportunities  down  to  that  period.  The  events  of  the  next  seven  years 
gave  it  a w'onderful  development.  “It  would  be  the  extreme  of  vanity  in  us,” 
said  he,  “ not  to  be  sensible  that  we  began  this  revolution  wdth  very  vague  and 
confined  notions  of  the  practical  business  of  government.  To  the  greater  part 
of  us  it  was  a novelty;  of  those  who,  under  the  former  Constitution,  had  had 
opportunities  of  acquiring  experience,  a large  proportion  adhered  to  tlie  oppo- 
site side,  and  the  remainder  can  only  be  supposed  to  have  possessed  ideas 
adapted  to  the  narrow  colonial  sjDhere  in  which  they  liad  been  accustomed  to 
move,  not  of  that  enlarged  kind  suited  to  tlie  government  of  an  independent 
nation.  I here  were,  no  doubt,  exceptions  to  these  observations — men  in  all  re- 
spects qualified  for  conducting  tlie  public  affairs  with  skill  and  advantage — but 
their  number  was  small ; they  were  not  always  brought  forward  in  our  councils, 
and  when  they  w^ere  their  influence  was  too  commonly  borne  down  by  the  pre- 
vailing torrent  of  ignorance  and  prejudice.  On  a retrospect,  however,  of  our 
tiansactions,  under  the  disadvantages  with  which  w’e  commenced,  it  is  perliaps 
more  to  be  wondered  at  that  we  have  done  so  well,  than  that  we  have  not  done 
better.  There  are,  indeed,  some  traits  in  our  conduct  as  cons2Jicuous  for  sound 


188 


CONSTITUTIONAL  HISTORY. 


The  actual  commercial  relations  of  the  United  States  with  other 
countries,  when  the  peace  took  place,  were  confined  to  treaties  of 
amity  and  commerce  with  France,  Sweden,  and  the  Netherlands; 
the  two  latter  transcending,  in  some  degree,  the  powers  of  the 
Confederation.  In  1776  the  Ke volutionary  Congress  had  adopted 
a plan  of  treaties  to  be  proposed  to  France  and  Spain,  which  con- 
templated that  the  subjects  of  each  country  should  pay  no  duties 
in  the  other  except  such  as  were  paid  by  natives,  and  should  have 
the  same  rights  and  privileges  as  natives  in  respect  to  navigation 
and  commerce.’  When  a treaty  of  amity  and  commerce  came  to 
be  concluded  with  France,  in  1778,  the  footing  on  which  the  sub- 
jects of  the  two  countries  were  placed,  in  the  dominions  of  each 
other,  was  that  of  the  most  favored  nations,  instead  of  that  of 
natives."  The  Articles  of  Confederation,  proposed  in  1777,  and 
finally  ratified  in  March,  1781,  reserved  to  the  states  the  right  of 
levying  duties  and  imposts,  excepting  only  such  as  would  interfere 
with  any  treaties  that  might  be  made  “ pursuant  to  the  treaties 
proposed  to  France  and  Spain.”  The  United  States  could,  there- 
fore, constitutionally  complete  these  two  treaties,  and  such  as 
were  dependent  upon  them,  but  no  others  which  should  have 
the  effect  of  restraining  the  legislatures  of  the  states  from  pro- 
hibiting the  exportation  or  importation  of  any  species  of  goods  or 
merchandise,  or  laying  whatever  duties  or  imposts  they  thought 
proper.^  

policy  as  otliers  for  mngnanimity.  But,  on  the  otlier  hand,  it  must  also  be  con- 
fessed there  have  been  many  false  steps,  many  chimerical  projects  and  Utopian 
speculations,  in  the  management  of  our  civil  as  well  as  of  our  military  affairs. 
A part  of  these  were  the  natural  effects  of  the  spirit  of  the  times,  dictated  by 
our  situation.  An  extreme  jealousy  of  power  is  the  attendant  on  all  popular 
revolutions,  and  has  seldom  Ijeen  witliout  its  evils.  It  is  to  this  source  we  are 
to  trace  many  of  the  fatal  mistakes  which  have  so  deeply  endangered  the  com- 
mon cause,  particularly  that  defect  wldcli  will  be  the  object  of  these  remarks— 
a want  of  power  in  Congress.”  Works,  II.  18G. 

’ Secret  Journals,  II.  7,  8.  Ibid.  59. 

2 Articles  of  Confederation,  Art.  VI.,  IX.  The  expression  in  the  sixth  article 
was:  “No  state  shall  lay  any  imposts,  etc.,  that  shall  interfere  with  any  stipu- 
lations in  treaties  entered  into  by  the  United  States  with  any  king,  prince,  or 
state,  in  pursuance  of  any  treaties  already  proposed  by  Congress  to  the  court  of 
France  and  Si)ain.”  The  ninth  article  saved  to  the  states  the  general  power 
of  levying  duties  and  laying  prohibitions. 


THE  CONFEDEIIATION. 


189 


In  1782,  negotiations  were  entered  into  for  a similar  treaty 
with  tlie  States-General  of  the  Netherlands.  When  the  instruc- 
tions to  ^[r.  Adams  to  negotiate  this  treaty  were  under  consid- 
eration in  Congress,  it  Avas  recollected  that  the  French  treaty 
contained  a stipulation  the  effect  of  which  would  enable  the  heirs 
of  the  subjects  of  either  party,  dying  in  the  territories  of  the 
other,  to  inherit  real  property,  without  obtaining  letters  of  natural- 
ization.* The  doubt  suggested  itself — as  it  Avell  might — Avhether 
such  an  indefinite  license  to  aliens  to  possess  real  property  within 
the  United  States  was  not  an  encroachment  upon  the  rights  of 
the  states.  It  seems  to  have  been  expected,  Avhen  the  French 
treaty  Avas  entered  into,  that  the  states  Avould  acquiesce  in  this 
])rovision,  on  account  of  the  peculiar  relations  of  this  country  to 
France,  and  because  of  the  saving  clause  in  the  Articles  of  Con- 
federation in  faA^or  of  the  treaties  to  be  made  Avith  that  power 
and  Avith  Spain.^  But  such  a stipulation  'as  this  Avas  clearly  not 
Avithin  the  meaning  of  that  clause ; and  it  Avas  received  Avith  great 
repugnance  by  many  of  the  states.^  In  the  treaty  Avith  the  Neth- 
erlands it  Avas  proposed  to  insert  a similar  provision ; but  it  Avas 
found  to  be  extremely  improbable  that  the  states  Avould  comply 
Avith  a similar  engagement  Avith  another  poAver.  The  language 
Avas  therefore  A^aried,  so  as  to  give  the  privilege  of  inheritance 
only  as  to  the  effects  ” of  persons  dying  in  the  country — an 
expression  AAdiich  Avould  probably  exclude  real  property,  but  Avhich 
might  possibly  be  construed  to  include  it.'* 

With  regard  to  duties  and  imposts,  the  Dutch  treaty  contained 
the  same  stipulation  as  the  French,  putting  the  subjects  of  either 
poAver  on  the  footing  of  the  most  favored  nations,  and  thereby 
holding  out  to  the  subjects  of  the  United  ProAunces  the  promise 
of  an  equality,  under  the  laAvs  of  the  United  States,  Avith  the  sub- 


^ Secret  Journals,  II.  65,  66.  Art.  XIII.  of  tlie  Treaty  of  Amity  and  Com- 
merce witli  France.  Tlie  expression  employed  was,  “ goods  movable  and 
immovable,”  and  the  right  of  succession  was  given,  ab  intestato^  without  first 
obtaining  letters  of  naturalization. 

^ See  a report  on  this  projet  of  the  treaty,  made  by  Mr.  Madison,  July  17, 
1782.  Secret  Journals,  II.  142-144. 

Ibid. 

* Art.  YI.  of  the  Treaty  of  Amity  and  Commerce  with  the  Netherlands,  exe- 
cuted by  Mr.  Adams  at  the  Hague,  October  8,  1782.  Journals,  VIII.  96. 


190 


CONSTITUTIONAL  HISTORY. 


jects  of  France.^  Tlie  same  stipulation  was  inserted  in  a treaty 
subsequently  made  at  Paris  with  the  King  of  Sweden."" 

If  these  stipulations  were  supposed  or  intended  to  be  binding 
upon  the  states,  so  as  to  restrain  them  from  adopting,  within  their 
respective  jurisdictions,  any  other  rule  than  that  fixed  by  the 
French  treaty,  for  the  subjects  of  the  United  Provinces  and  the 
King  of  Sweden,  it  is  quite  clear  that  the  Articles  of  Confedera- 
tion gave  no  authority  to  Congress  to  make  them.  They  could 
have  no  effect,  therefore,  in  producing  a uniformity  of  regula- 
tion throughout  the  United  States  with  regard  to  the  trade  with 
Sweden  and  the  Netherlands. 

The  relations  of  the  United  States  with  Great  Britain  were, 
however,  far  more  important  than  their  relations  with  Sweden 
or  Holland.  When  the  war  was  drawing  to  a close,  and  the  pro- 
visional articles  of  peace  had  been  agreed  upon,  a measure  was 
in  preparation  in  England,  under  the  auspices  of  Mr.  Pitt,  designed 
as  a temporary  arrangement  of  commercial  intercourse  between 
Great  Britain  and  the  United  States,  and  which  would  have  ena- 
bled the  government  of  this  country  to  have  formed  a treaty  so 
advantageous  that  the  states  would  doubtless  have  conformed 
their  legislation  to  its  provisions.  That  great  statesman  perceived 
that  it  was  extremely  desirable  to  establish  the  intercourse  of  the 
two  countries  on  the  most  enlarged  principles  of  reciprocal  benefit, 
and  his  purpose  was,  by  a provisional  arrangement,  to  evince  the 
disposition  of  England  to  be  on  terms  of  amity  with  the  United 
States,  preparatory  to  the  negotiation  of  a treaty."  But  the  admin- 
istration, in  which  he  was  then  Chancellor  of  the  Exchequer,  went 
out  of  office  immediately  after  he  had  proposed  this  measure,  and 
their  successors,  following  a totally  different  line  of  policy,  pro- 
cured an  act  of  Parliament  authorizing  the  king  in  council  to 
regulate  the  commercial  intercourse  between  the  United  States 
and  Great  Britain  and  her  dependencies. 

Mr.  Pitt’s  bill  was  designed  to  admit  the  vessels  and  subjects 
of  the  United  States  into  all  the  ports  of  Great  Britain  in  the 

’ Art.  II.  and  III.  of  the  Treaty  of  Amity  and  Commerce  with  the  Netherlands, 
executed  by  Mr.  Adams  at  the  Hague,  October  8,  1782.  Journals,  VIII.  9C. 

2 April  3,  1783.  Journals,  VHI.  386-398. 

® Mr.  Pitt’s  bill  was  brought  in  in  March,  1783,  and  he  went  out  of  office 
immediately  afterwards.  * April,  1783. 


THE  CONFEDERATION. 


191 


same  manner  as  the  subjects  and  vessels  of  other  independent 
sovereign  states,  and  to  admit  merchandise  and  goods,  the  growth, 
])roduce,  or  manufacture  of  this  country,  under  the  same  duties 
and  charges  as  if  they  were  the  ])roperty  of  British  subjects, 
imported  in  British  vessels.  It  also  proposed  to  establish  an 
entirely  free  trade  between  the  United  States  and  the  British 
islands,  colonies,  and  plantations  in  America.  The  new  adminis- 
tration, on  the  contrary,  believing  that  this  would  encourage  the 
American  marine,  to  the  ruin  of  that  of  Great  Britain,  and  would 
deprive  the  latter  of  a monopoly  in  the  consumption  of  her  colo- 
nies, and  in  their  carrying  trade,  resolved  to  reverse  this  entire 
])olicy.  In  this  course  they  were  encouraged  by  the  views  which 
they  took  of  the  internal  situation  of  this  country,  and  which  were, 
to  a great  extent,  justified  by  the  fact.  They  believed  that  we 
could  not  act,  as  a nation,  upon  questions  of  commerce ; that  the 
climates,  the  staples,  and  the  manners  of  the  states  were  different, 
and  their  interests  therefore  opposite ; and  that  no  combination 
Avas  likely  to  take  place  from  Avhich  England  would  have  reason 
to  fear  retaliation.  They  supposed  that,  inasmuch  as  the  Con- 
federation had  no  power  to  make  any  but  general  treaties,  and 
as  the  states  had  reserved  to  themselves  nearly  every  power  con- 
cerning the  regulation  of  trade,  no  treaty  could  be  made  that 
Avould  be  binding  upon  all  the  states ; and  that,  if  treaties  should 
become  necessary,  they  must  be  made  Avitli  the  states  respectively. 
But  they  denied  that  treaties  Avere  necessary,  and  maintained 
that  it  would  be  unAvise  to  enter  at  present  into  any  arrangements 
by  Avhich  they  might  not  Avish  afterwards  to  be  bound.  They 
determined,  therefore,  to  deal  Avith  this  country  as  a collection  of 
rival  states,  Avith  each  of  Avhich  they  could  make  their  oAvn  terms, 
after  the  pressure  of  their  policy,  and  the  impossibility  of  escaping 
from  its  effects,  had  begun  to  be  felt.  They  accordingly  began, 
by  excluding  from  the  British  West  Indies,  under  orders  in  coun- 
cil, the  Avhole  American  marine,  and  by  prohibiting  fish,  and 
many  important  articles  of  our  produce,  from  being  carried  there, 
even  in  British  A^essels.^ 


1 July,  1783.  Tlieir  idea  was  that,  if  the  American  states  should  choose  to 
send  consuls,  they  should  be  received,  and  consuls  sent  to  them  in  return ; that 
each  state  would  soon  enter  into  all  necessary  regulations  with  the  consul,  and 


192 


CONSTITUTIONAL  HISTORY. 


At  the  termination  of  the  war  the  foreign  commerce  of  the 
United  States  was  capable  of  great  expansion.  It  consisted  of 
three  important  branches — the  trade  of  the  Eastern,  that  of  the 
Middle,  and  that  of  the  Southern  States  ; each  of  which  required 
at  once  the  means  of  reaching  foreign  markets.  The  rice  and 
indigo  of  the  South  might  be  carried  to  Europe.  The  Middle 
States  might  export  to  Europe  tobacco,  tar,  wheat,  and  flour ; and 
to  the  West  Indies,  pork,  beef,  bread,  flour,  lumber,  tar,  and  iron. 
The  Eastern  States  might  supply  the  markets  of  Europe  with  spars, 
ship-timber,  staves,  boards,  flsh,  and  oil,  and  those  of  the  West  In- 
dies with  lumber,  pork,  beef,  live  cattle,  horses,  cider,  and  fish.  The 
whole  of  these  great  interests  of  course  received  a sudden  and 
almost  fatal  blow  from  the  English  Orders  in  Council,  and  no  means 
whatever  existed  of  countervailing  their  effects  but  such  as  each 
state  could  provide  for  its  own  people  by  its  own  legislation. 

Congress,  however,  awoke  to  the  perception  of  an  efficient  and 
appropriate  remedy,  of  a temporary  character,  and  prepared  to 
apply  it,  through  an  amendment  of  their  powers.  For  the  purpose 
of  meeting  the  policy  of  Great  Britain  with  similar  restrictions 
on  her  commerce,  they  recommended  to  the  states  to  vest  in 
Congress,  for  the  term  of  fifteen  years,  authority  to  prohibit  the 
vessels  of  any  power,  not  having  treaties  of  commerce  with  the 
United  States,  from  importing  or  exporting  any  commodities  into 
or  from  any  of  the  states,  and  also  with  the  powmr  of  prohibiting, 
for  a like  term,  the  subjects  of  any  foreign  country,  unless  author- 
ized by  treaty,  from  importing  into  the  United  States  any  mer- 
chandise not  the  produce  or  manufacture  of  such  country.'  There 
wns  already  before  the  states,  as  w^e  have  seen,  in  the  revenue 
system  of  1783,  a proposal  to  them  to  vest  in  Congress  power  to 
levy  certain  duties  on  foreign  commodities,  for  the  same  period  ; 
and  if  these  tw^o  grants  of  powmr  had  been  made,  and  made 
promptly,  by  the  states.  Congress  would  have  possessed,  for  a 
time,  an  effectual  control  over  commerce,  and  the  practical  means 
of  forming  suitable  commercial  treaties. 

But  the  proposal  of  the  30th  of  April,  1781,  met  with  a tardy 
and  reluctant  attention  among  the  states.  Only  one  of  them  had 
acted  upon  it,  as  late  as  the  following  February,  wdien  the  dele- 

tliat  notliing  more  was  necessary.  See  Lord  Sheffield’s  Observations  on  Amer- 
ican Commerce.  ' April  30,  1784. 


THE  CON  F E I)  E 11 A T I O N. 


193 


gates  for  jVlaryland  laid  before  Congress  an  act  of  tliat  state  upon 
the  subject.'  New  Hampshire  was  the  next  state  to  comply,  in 
the  succeeding  June."'  In  the  meantime,  however.  Congress  pre- 
pared to  prosecute  negotiations  in  Europe,  trusting  to  the  chances 
of  an  enlargement  of  their  powers,  in  pursuance  of  their  recom- 
mendation. Accordingly,  they  proceeded,  in  the  spring  of  1784, 
to  appoint  a commission  to  negotiate  commercial  treaties,  and 
settled  the  principles  on  which  such  treaties  Avere  to  be  formed. 
The  leading  principle  then  determined  on  was,  that  each  party  to 
the  treaty  should  hat^e  a right  to  carry  their  own  produce,  manu- 
factures, and  merchandise  in  their  own  bottoms  to  the  ports  of 
the  other,  and  to  take  thence  the  produce,  manufactures,  and  mer- 
chandise of  the  other,  paying,  in  both  cases,  such  duties  only  as 
Avere  paid  by  the  most  faAwed  nation.  The  resolves  appointing 
the  commission  also  contained  a very  explicit  direction  that  ‘‘  the 
United  States,  in  all  such  treaties,  and  in  every  case  arising  under 
them,  should  be  considered  as  one  nation,  upon  the  principles  of 
the  Federal  Constitution.”  ' Yet  the  Federal  Constitution  did  not, 
at  that  A^ery  moment,  make  the  United  States  one  nation  for 
this  purpose.  Its  principles  gaA^e  to  Congress  no  authority  which 
could  prevent  the  states  from  prohibiting  any  exportations  or 
importations  av  hat  ever,  as  to  their  respective  territories  ; and  the 
Anlidity  of  these  treaties,  thus  proposed  to  be  negotiated  Avith 
fifteen  European  poAvers,  depended  altogether  upon  the  preca- 
rious assent  of  the  thirteen  states  to  the  alterations  in  the  prin- 
ciples of  the  Federal  Constitution  Avhich  Congress  had  proposed. 

That  assent  Avas  not  likely  to  be  given  so  as  to  become  effect- 
ual for  the  purposes  for  Avhich  it  had  been  asked.  The  action  of 
the  states  Avas  found,  in  the  spring  of  1786,  to  present  a mass  of 
incongruities  Avhich  rendered  the  Avhole  scheme  of  thus  increasing 

’ February  14,  1785.  Journals,  X.  53. 

By  an  act  passed  June  22-23,  1785;  laid  before  Congress  October  10,  1785. 
Ibid.  353.  ^ 

® The  commission  consisted  of  Mr.  John  Adams,  then  at  the  Hague,  Dr. 
Franklin,  then  in  France,  and  Mr.  Jetferson,  then  in  Congress.  Mr.  Jefferson 
sailed  from  Boston  on  the  5th  of  Jul}^,  and  arrived  in  Paris  on  the  6th  of  August, 
1784  (Works,  I.  49).  The  powers  with  whom  they  were  to  negotiate  commercial 
treaties  were  Eussia,  Austria,  Prussia,  Denmark,  Saxony,  Hamburg,  Great  Britain, 
Spain,  Portugal,  Genoa,  Tuscany,  Rome,  Naples,  Venice,  Sardinia,  and  the  Otto- 
man Porte.  Secret  Journals,  III.  484-489.  May  7,  1784. 

I.— 13 


194 


CONSTITUTIONAL  HISTORY. 


the  federal  powers  almost  hopeless.  Four  of  the  states  had  passed 
laws  conforming  substantially  to  the  recommendations  of  Congress, 
but  restraining  their  operation  until  the  other  states  should  have 
complied.'  Three  of  the  states  had  passed  the  requisite  acts,  and 
had  fixed  different  periods  at  which  they  were  to  take  effect."  One 
state  had  granted  full  powers  to  regulate  its  trade,  by  restrictions 
or  duties,  for  fifteen  years,  with  a proviso  that  the  law  should  be 
suspended  until  all  the  other  states  had  done  the  same."  Another 
state  had  granted  power,  for  twenty -five  years,  to  regulate  trade 
between  the  respective  states,  and  to  prohibit  or  regulate  the  im- 
portation only  of  foreign  goods  in  foreign  vessels,  but  restricting 
the  operation  of  the  act  until  the  other  states  had  passed  similar 
laws.'  Still  another  state  had  granted  powers  like  the  last,  but 
without  limitation  of  time,  and  with  the  proviso  that,  when  all 
the  other  states  had  made  the  same  grants,  it  should  become  an 
article  of  the  Confederation."  The  three  remaining  states  had 
passed  no  act  upon  the  subject.®  Upon  these  conflicting  and 
irreconcilable  provisions  Congress  could  take  no  other  action  than 
to  call  the  attention  of  the  states  again  to  the  original  proposal, 
and  request  them  to  revise  their  laws.^ 

While  this  discordant  legislation  was  manifesting  at  home  the 
entire  impracticability  of  amending  the  Federal  Constitution  by 
means  of  the  separate  action  of  the  state  legislatures,  the  commis- 
sioners abroad  wmre  engaged  in  efforts,  nearly  as  fruitless,  to  negoti- 
ate the  treaties  which  they  had  been  instructed  to  make.  The  com- 
mission was  opened  at  Paris  on  the  13th  of  August,  1784,  and  its 
objects  announced  to  the  different  governments.  France  was  not 
disposed  to  change  the  existing  relations.  England  perceived  the 
real  want  of  power  in  the  federal  government,  and  recognized 
nothing  in  the  commission  but  the  fact  that  it  had  been  issued  by 
Congress,  while  the  separate  states  had  conferred  no  powers  upon 
either  Congress  or  the  commissioners.®  Prussia  alone  entered  into 

1 Massachusetts,  New  York,  New  Jersey,  and  Virginia. 

2 Connecticut,  Pennsylvania,  and  Maryland.  ^ New  Hampshire. 

^ Rhode  Island.  ® North  Carolina. 

® Delaware,  South  Carolina,  and  Georgia. 

’ See  a report  made  in  Congress,  March  3,  1786.  Journals,  XI.  41. 

® The  Duke  of  Dorset,  the  English  ambassador  at  Paris,  wrote  to  the  commis- 
sioners (March  26,  1785)  as  follows:  “Having  communicated  to  my  court  the 


THE  CONFEDERATION. 


195 


a treaty  upon  some  of  the  principles  laid  down  in  the  commission, 
and  soon  after  it  was  executed  the  commissioners  ceased  to  do 
anything  whatever. * 

During  the  period  which  elapsed  from  the  Treaty  of  Peace 
with  England  to  the  assembling  of  the  Convention  at  Annapolis, 
the  legislation  of  the  different  states,  designed  to  protect  them- 
selves against  the  policy  of  England,  was  of  course  without  sys- 
tem or  concert,  and  without  uniformity  of  regulation.  At  one 
time  duties  were  made  extravagantly  high ; at  another  competi- 
tion reduced  them  below  the  point  at  which  any  considerable  rev- 
enue could  be  derived.  At  one  time  the  states  acted  in  open  hos- 
tility to  each  other ; at  another  they  contemplated  commercial 
leagues,  without  regard  to  the  prohibition  contained  in  the  Arti- 
cles of  Confederation.  ]N"o  steady  sj^stem  was  pursued  by  any  of 
them,  and  the  inefScacy  of  state  legislation  became  at  length  so 
apparent  that  a conviction  of  the  necessity  of  new  powers  in  Con- 
gress forced  itself  upon  the  public  mind. 


readiness  you  exj^ressed  in  your  letter  to  me  of  the  9tli  of  December  to  remove 
to  Loudon,  for  the  purpose  of  treating  upon  such  points  as  may  materially  con- 
cern the  interests,  both  political  and  commercial,  of  Great  Britain  and  America, 
and  having  at  the  same  time  represented  that  you  declared  yourselves  to  be  fully 
authorized  and  empowered  to  negotiate,  I have  been,  in  answer  thereto,  instructed 
to  learn  from  you,  gentlemen,  what  is  the  real  nature  of  the  powers  with  which 
you  are  invested — whether  you  are  merely  commissioned  by  Congress,  or  whether 
you  have  received  separate  powers  from  the  respective  states.  A committee  of 
North  Americrai  merchants  have  waited  upon  his  majesty’s  principal  secretary 
of  state  of  foreign  affairs,  to  express  how  anxiously  they  wished  to  be  informed 
upon  this  subject,  repeated  experience  having  taught  them  in  particular,  as  well 
as  the  public  in  general,  how  little  the  authority  of  Congress  could  avail  in  any 
respect  where  the  interest  of  any  one  individual  state  was  even  concerned,  and 
particularly  so  where  the  concerns  of  that  state  might  be  supposed  to  militate 
against  such  resolutions  as  Congress  might  think  proper  to  adopt.  The  appar- 
ent determination  of  the  respective  states  to  regulate  their  own  separate  inter- 
ests renders  it  absolutely  necessary,  towards  forming  a permanent  system  of 
commeice,  that  my  court  should  be  informed  how  far  the  commissioners  can  be 
duly  authorized  to  enter  into  any  engagements  with  Great  Britain  which  it  may 
not  be  in  the  power  of  any  one  of  the  states  to  render  totally  fruitless  and  inef- 
fectual.” Diplomatic  Correspondence,  II.  297. 

^ Jefferson’s  Works,  I.  50,  51.  The  whole  proceedings  of  this  commission 
may  be  found  in  the  Diplomatic  Correspondence,  II.  193-346. 


CHAPTER  XIY. 

1 783-178  7. 

The  Public  Lands. — Government  of  the  Northwestern  Terri- 
tory.— Threatened  Loss  of  the  Western  Settlements. 

The  Confederation,  although  preceded  by  a cession  of  western 
territory  from  the  state  of  New  York  for  the  use  of  the  United 
States,  contained  no  grant  of  power  to  Congress  to  hold,  manage, 
or  dispose  of  such  property.  There  had  been,  while  the  Articles 
of  Confederation  were  under  discussion  in  Congress,  a proposal  to 
insert  a provision  giving  to  Congress  the  sole  and  exclusive  right 
and  power  to  ascertain  and  fix  the  western  boundary  of  such  states 
as  claimed  to  the  Mississippi  or  the  South  Sea,”  and  to  la‘y  out 
the  land  beyond  the  boundary  so  ascertained  into  separate  and 
independent  states  from  time  to  time,  as  the  numbers  and  circum- 
stances of  the  inhabitants  might  require.’  This  proposal  was  neg- 
atived by  the  vote  of  every  state  except  Maryland  and  New  Jersey.^ 
Its  rejection  caused  the  adoption  of  the  Confederation  to  be  post- 
poned for  a period  of  more  than  two  years  after  it  was  submitted 
to  the  states."  Virginia  had  set  up  claims  to  an  indefinite  extent 
of  territory,  stretching  far  into  the  western  wilderness,  which 
were  looked  upon  with  especial  jealousy  by  Maryland ; and  when 
the  Articles  of  Confederation  came  before  the  legislature  of  that 
state  for  consideration,  the  absence  of  any  provision  vesting  in  the 
Union  any  control  over  these  claims,  or  any  power  to  ascertain 
and  fix  the  western  boundaries  of  the  great  states,  became  at  once 
a cause  of  irritation  and  alarm.  The  steps  taken  by  Maryland  to 
have  this  power  introduced  into  the  Articles  have  already  been 
detailed.'*  But  the  Articles  could  not  be  amended.  Congress 


^ October  15,  1777.  Secret  Journals,  I.  328.  ^ ibid. 

3 See  tlie  account  of  the  adoption  of  the  Confederation,  ante,  pp.  90-97. 
^ Ante,  pp.  90-94. 


TII> 


could  only  make  effort 
tion  by  recommending 
to  the  Union.  The 
was  to  recommend  to  i 
similarly  situated,  not  t 
ing  the  continuance  of  ti 
sideration  of  the  subject 
and  the  remonstrance  of 
tion  of  the  merits  or  poll 
power  upon  the  Confedei 
to  endeavor  to  procij 
claims  of  the  seve 
this  effect  tliej^ 

New  York, 
gress  to  li 
vacant 
dared 
be  h 
be 


[STORY. 


t which  was  to  consti- 
thority  for  the  estab- 
e Union.  But  when, 
and  before  they  had 
undertook,  in  1780,  to 
motives  for  their  adop- 
fis  were  acted  upon  and 
le  territory  came  right- 
es.  Whether  the  adop- 
ter the  government  of 
dates  into  the  Union, 
where,  if  it  acted 
■’tutional  author- 
a.cquisition  of 
'^’ectly  and 
V union 
part 
hpal 


T II E CON  F E D E 11  A T I O N. 


191) 


with  the  former  recommeiulations.  Tiiis  drew  from  the  state  of 
New  Jersey,  apprehensive  that  the  offer  of  Virginia  might  be 
accepted,  a remonstrance  against  tlie  cession  pro])Osed  by  that 
state,  as  partial,  unjust,  and  illiberal.'  Congress  again  took  the 
subject  into  consideration,  examined  the  conditions  which  tlie  legis- 
lature of  Ahrginia  had  annexed  to  their  proposed  grant,  declared 
some  of  them  inadmissible,  and  stated  the  conditions  on  which 
the  cession  could  be  received."  Virginia  complied  with  the  terms 
proposed  by  Congress,  and  upon  those  terms  ceded  to  the  United 
States  all  right,  title,  and  claim,  both  of  soil  and  jurisdiction,  which 
the  state  then  had  to  the  territory  within  the  limits  of  its  charter, 
lying  to  the  northwest  of  the  river  Ohio.  That  magnificent  region, 
in  which  now  lie  the  powerful  states  of  Ohio,  Indiana,  Illinois, 
Michigan,  and  Wisconsin,  became  the  property  of  the  United 
States,  by  a grant  of  twenty  lines,  executed  in  Congress  by  Thomas 
Jefferson  and  three  of  his  colleagues,  on  the  1st  day  of  March, 
1784." 

Soon  after  this  cession  had  been  completed.  Congress  passed  a 
resolve  for  the  regulation  of  the  territory  that  had  been  or  might 
be  ceded  to  the  United  States,  for  the  establishment  of  temporary 
and  permanent  governments  by  the  settlers,  and  for  the  admission 

^ June  20, 1783.  " September  13, 1783. 

® The  granting  part  of  the  deed  of  cession,  exclusive  of  its  recitals,  is  as  fol- 
lows : “That  we,  the  said  Thomas  Jefferson,  Samuel  Hard3%  Arthur  Lee,  and 
James  Monroe,  by  virtue  of  the  power  and  authority  committed  to  us  by  tlie  act 
of  the  said  General  Assembly  of  Virginia  before  recited,  and  in  the  name  and 
for  and  on  behalf  of  the  said  commonwealth,  do  by  these  presents  convey,  trans- 
fer, assign,  and  make  over  unto  the  United  States  in  Congress  assembled,  for  the 
benefit  of  the  said  states,  Virginia  inclusive,  all  right,  title,  and  claim,  as  well  of 
soil  as  of  jurisdiction,  which  the  said  commonwealth  hath  to  the  territory  or 
tract  of  country  within  the  lines  of  the  Virginia  charter,  situate,  lying,  and  being 
to  the  northwest  of  the  river  Ohio,  to  and  for  the  uses  and  purposes,  and  on  the 
conditions,  of  the  said  recited  act.”  The  cession  was  made  with  the  reservation 
of  such  a portion  of  the  territory  ceded,  between  the  rivers  Scioto  and  Little 
Miami,  as  might  be  required  to  make  up  the  deficiencies  of  land  on  the  south 
side  of  the  Ohio,  called  the  Green  River  lands,  I'eserved  for  the  Virginia  troops 
on  continental  establishment  (Journals,  IX.  67-69).  Subsequently  the  act  of 
cession  was  altered,  so  as  to  admit  of  the  formation  of  not  more  than  five,  nor 
less  than  three  states,  of  a size  more  convenient  than  that  described  in  the  act 
of  cession  and  in  the  resolve  of  October  10, 1780.  Journals,  XL  139, 140.  July 
9, 1786. 


200 


CONSTITUTIONAL  HISTORY. 


of  the  new  states  thus  formed  into  the  Union.*  This  resolve  pro- 
vided that  the  territory  which  had  been  or  might  be  ceded  to  the 
United  States,  after  the  extinguishment  of  the  Indian  title,  and 
when  offered  for  sale  by  Congress,  should  be  divided  into  separate 
states,  in  a manner  specified ; that  the  settlers  on  such  territory, 
either  on  their  own  petition  or  on  the  order  of  Congress,  should  ' 
receive  authority  to  form  a temporary  government ; and  that  when 
there  should  be  twenty  thousand  free  inhabitants  within  the  limits 
of  any  of  the  states  thus  designated,  they  should  receive  authority 
to  call  a convention  of  representatives  to  establish  a permanent 
constitution  and  government  for  themselves,  provided  that  both 
the  temporary  and  permanent  governments  should  be  established 
on  these  principles,  as  their  basis  : 1.  That  they  should  forever 
remain  a part  of  the  Confederacy  of  the  United  States  of  America. 

2.  That  they  should  be  subject  to  the  Articles  of  Confederation 
and  the  acts  and  ordinances  of  Congress,  like  the  original  parties 
to  that  instrument.  3.  That  they  should  in  no  case  interfere  with 
the  disposal  of  the  soil  by  Congress.  4.  That  they  should  be  sub- 
ject to  pay  a part  of  the  federal  debts,  present  and  prospective,  in 
the  same  measure  of  apportionment  with  the  other  states.  5.  That 
they  should  impose  no  tax  upon  lands  the  property  of  the  United 
States.  6.  That  their  respective  governments  should  be  republican. 

7.  That  the  lands  of  non-resident  proprietors  should  not  be  taxed 
higher  than  those  of  residents,  in  any  new  state,  before  its  dele- 
gates, had  been  admitted  to  vote  in  Congress. 

The  resolve  also  contained  a provision  which  appears  to  have 
been  designed  to  meet  the  want  of  constitutional  power,  under  the 
Articles  of  Confederation,  relative  to  the  admission  of  new  states. 

It  was  declared  that  whenever  any  of  the  states  thus  formed  should 
have  as  many  free  inhabitants  as  the  least  numerous  of  the  thirteen 
original  states,  it  should  be  admitted  by  its  delegates  into  Con-  ( 
gress  on  an  equal  footing  with  the  original  states,  provided  the 
assent  of  so  many  states  in  Congress  should  be  first  obtained,  as 
might  at  the  time  be  competent  to  such  admission.  It  was  fur- 
ther declared  that,  in  order  to  adapt  the  Articles  of  Confederation 
to  the  condition  of  Congress  when  it  should  be  thus  increased,  it 
should  be  proposed  to  the  original  states,  parties  to  that  instru- 


April  23,  1781.  . Journals,  IX.  153. 


THE  CONFEDERATION. 


201 


merit,  to  change  the  rule  which  required  a vote  of  nine  states,  to 
a vote  of  two  thirds  of  all  the*  states  in  Congress ; and  that  when 
this  change  had  been  agreed  upon,  it  should  be  binding  upon  the 
new  states. 

After  tlie  establishment  of  a temporary  government,  and  be- 
fore its  admission  into  the  Union,  each  of  the  new  states  was  to 
have  the  right  to  keep  a member  in  Congress,  with  the  privilege 
of  debating,  but  not  of  voting.  It  was  also  provided  that  meas- 
ures not  inconsistent  with  the  principles  of  the  Confederation,  and 
necessary  for  the  preservation  of  peace  and  good  order  among  the 
settlers  in  any  of  the  said  new  states,  until  they  had  assumed  a 
temporary  government,  might,  from  time  to  time,  be  taken  by  the 
United  States  in  Congress  assembled. 

These  provisions  were  to  stand  as  a charter  of  compact  and  as 
fundamental  constitutions  between  the  thirteen  original  states  and 
each  of  the  new  states  thus  described,  unalterable  from  and  after 
the  sale  of  any  part  of  the  territory  of  such  state,  but  by  the  joint 
consent  of  the  United  States  in  Congress  assembled,  and  of  the 
particular  state  to  be  affected.' 

^^ew  and  urgent  recommendations  followed  the  passage  of  this 
resolve,  pressing  the  states  to  consider  that  the  war  was  now  hap- 
pily brought  to  a close,  by  the  services  of  the  army,  the  supplies 
of  property  by  citizens,  and  loans  of  money  by  citizens^  and  for- 
eigners, constituting  a body  of  creditors  who  had  a right  to  expect 
indemnification,  and  that  the  vacant  territory  was  an  important 
resource  for  this  great  object.^ 

The  subject  does  not  seem  to  have  again  occupied  the  atten- 
tion of  Congress  until  the  spring  of  the  following  year,  when  a 
proposition  was  introduced  and  committed,  to  exclude  slavery  and 
involuntary  servitude,  otherwise  than  in  punishment  of  crimes, 
from  the  states  described  in  the  resolve  of  April  23d,  1784,  and 
to  make  this  provision  part  of  the  compact  established  by  that 
resolve.^ 

Soon  afterwards,  a cession  was  made  by  Massachusetts  of  all 
its  right  and  title,  both  of  soil  and  jurisdiction,  to  the  western 


I April  23, 1784.  Journals,  IX.  153.  ^ 29, 1784.  Journals,  IX.  184. 

3 This  proposition  was  introduced  by  Rufus  King,  March  16,  1785,  and  was 
committed  by  the  votes  of  eight  states  against /owr. 


202 


CONSTITUTIONAL  HISTORY. 


territory  lying  within  the  limits  of  the  charter  of  that  state.’  In 
the  succeeding  month,  Congress  adopted  an  ordinance  for  ascer- 
taining the  mode  of  disposing  of  the  western  lands  to  settlers." 
In  the  course  of  the  next  year,  the  cession  by  Connecticut  was 
made,  after  various  negotiations,  with  a reservation  to  that  state 
of  the  property  in  a considerable  tract  of  country,  since  called  the 
Connecticut  Reserve,  lying  to  the  south  of  Lake  Erie,  and  now 
embraced  within  the  state  of  Ohio." 

Before  this  transaction  had  been  completed,  it  had  become 
manifest,  from  the  knowledge  that  had  been  obtained  of  the  coun- 
try northwest  of  the  Ohio,  that  it  would  be  extremely  inconvenient 
to  lay  it  out  into  states  of  the  extent  and  dimensions  described  in 
the  resolve  of  October  10th,  1780,  under  Avhich  the  cession  of  Vir- 
ginia had  been  made ; and  the  legislature  of  that  state  were  ac- 
cordingly asked  to  modify  their  act  of  cession,  so  as  to  enable 
Congress  to  lay  out  the  territory  into  not  more  than  five  nor  less 
than  three  states,  as  the  situation  and  circumstances  of  the  coun- 
try might  require.'’  This  suggestion  was  complied  Avith." 

A cession  by  South  Carolina  then  followed,  of  all  its  claim  to 
lands  lying  toAvards  the  river  Mississippi;®  but  no  other  cessions 
Avere  made  to  the  United  States  under  the  Confederation;  those 
of  Georgia  and  Uorth  Carolina  having  been  made  after  the  adop- 
tion of  the  Constitution.’ 

It  appears,  therefore,  that,  Avith  the  exception  of  the  claims  of 
South  Carolina  to  territory  lying  due  Avest  from  that  state  to\A^- 


1 April  19, 1785.  May  20, 1785. 

^ September  14, 178G.  Journals,  XI.  221-223.  The  deed  of  cession,  and  the 
act  of  Connecticut  recited  in  it,  do  not  disclose  this  reservation.  The  territory 
ceded  is  described  by  certain  lines  'whicli  include  less  than  the  wliole  claim  of 
Connecticut.  It  appears  from  the  Journals,  under  tlie  date  of  May  22-26,  1786, 
and  from  various  propositions  considered  between  those  dates,  that  the  state  of 
Connecticut  claimed  to  own  a larger  extent  of  territory  than  she  proposed  to 
cede;  and,  by  way  of  compromise,  her  claim  was  so  far  acceded  to  that  Congress 
agreed  to  accept  of  a cession  of  less  than  the  whole.  Tlie  reservation  embraced 
about  six  millions  of  acres.  See  Sparks’s  Washington,  IX.  178,  note,  where  it 
appears  that  the  right  of  the  state  to  this  territory  was  considered  very  feeble  at 
the  time. 

4 July  9, 1786.  " December  30, 1788.  ® August  9, 1787. 

That  of  North  Carolina  was  made  February  25, 1790,  and  that  of  Georgia, 
April  24, 1802. 


THE  CONFEDERATION. 


203 


ards  the  river  ]\[ississi})pi,  the  United  States,  before  the  13tli  of 
July,  1787,  had  become  possessed  of  the  title  to  no  other  territory 
than  that  which  had  been  surrendered  to  them  by  the  states  of 
New  York,  Virginia,  Massachusetts,  and  Connecticut.  The  great 
mass  of  this  territory  was  that  embraced  within  the  cession  of 
Virginia,  and  lying  to  the  northwest  of  the  river  Ohio ; and  after 
the  whole  title  to  this  region,  with  the  exception  of  some  reserved 
tracts,  had  become  complete  in  the  United  States,  it  was  subject  to 
the  resolves  of  1780  and  of  1781:.  The  provisions  of  the  resolve  of 
1781:,  however,  were  soon  seen  to  be  inconvenient  and  inapplicable 
to  the  pressing  wants  of  this  region.  Immediate  legislation  was 
plainly  demanded  for  this  territory,  which  could  not  wait  the  slow 
process  of  forming  first  temporary  and  then  permanent  govern- 
ments, as  had  been  contemplated  by  that  resolve.  Congress  had 
had  cast  upon  it  the  administration  of  an  empire,  exterior  to  the 
Confederation,  and  rapidly  filling  with  people,  in  which  the  rights 
and  tenure  of  property,  the  preservation  of  order  and  tranquillity, 
and  the  shaping  of  its  political  and  social  destinies,  required  in- 
stant legislation.  This  legislation  was  therefore  provided  in  the 
celebrated  Ordinance  for  the  Government  of  the  Northwestern 
Territory,  enacted  July  13, 1787,  which  was  designed  to  supersede 
and  in  terms  directly  repealed  the  resolve  of  1784.  As  this  funda- 
mental law  for  a new  and  unsettled  country — at  that  time  a novel 
undertaking — must  always  be  regarded  with  interest  in  every  part 
of  the  world,  and  as  it  lies  at  the  foundation  of  the  civil  polity  of 
a large  part  of  these  United  States,  its  principles  and  provisions 
should  be  carefully  examined. 

The  territory  was,  for  the  purposes  of  temporary  government, 
constituted  one  district,  subject  to  be  divided  into  two,  as  future 
circumstances  might  require.  An  equal  distribution  of  property 
among  the  children  of  persons  dying  intestate,  with  a life  estate 
to  the  widow  in  one  third  of  the  real  and  personal  estate,  was 
made  the  law  of  the  territory,  until  it  should  be  altered  by  its 
legislature.  Persons  of  full  age  were  empowered  to  dispose  of 
their  estates  by  a written  will,  executed  in  the  presence  of  three 
witnesses.  Peal  estates  were  authorized  to  be  conveyed  by  deed, 
executed  by  a person  of  full  age,  acknowledged  and  attested  by 
two  witnesses.  Both  wills  and  deeds  were  required  to  be  regis- 
tered. Personal  property  was  transferable  by  delivery. 


204 


CONSTITUTIONAL  HISTORY. 


The  civil  government  of  the  territory  was  to  consist  of  execu- 
tive, legislative,  and  judicial  branches.  A governor  was  to  be  ap- 
pointed from  time  to  time  by  Congress,  and  to  be  commissioned 
for  three  years,  subject  to  removal ; but  he  was  to  reside  in  the 
district,  and  to  have  a freehold  estate  there  in  one  thousand  acres 
of  land,  while  in  the  exercise  of  his  office.  A secretary  was  also 
to  be  appointed  from  time  to  time  by  Congress,  and  to  be  commis- 
sioned for  four  years,  subject  to  removal,  but  to  reside  in  the  dis- 
trict, and  to  have  a freehold  estate  there  in  five  hundred  acres  of 
land,  while  in  the  exercise  of  his  office.  There  was  also  to  be  ap- 
pointed a court  of  common-law  jurisdiction,  to  consist  of  three 
judges,  any  two  of  whom  should  form  a court ; they  Avere  to  re- 
side in  the  district,  and  to  have  each  a freehold  estate  there  in  five 
hundred  acres  of  land,  Avhile  in  the  exercise  of  their  office ; their 
commissions  to  continue  in  force  during  good  behavior. 

The  governor  and  judges,  or  a majority  of  them,  Avere  to  adopt 
and  publish  in  the  district  such  laAvs  of  the  original  states,  crim- 
inal and  civil,  as  might  be  necessary  and  best  suited  to  the  cir- 
cumstances of  the  district,  to  be  in  force  in  the  district  until  the 
organization  of  the  General  Assembly,  unless  disapproved  by  Con- 
gress, to  Avhom,  from  time  to  time,  they  should  be  reported ; but 
the  legislature,  Avhen  constituted,  Avere  to  have  authority  to  alter 
them  as  they  should  think  fit. 

Magistrates  and  other  civil  officers  Avere  to  be  appointed  by  the 
governor,  previous  to  the  organization  of  the  General  Assembly, 
for  the  preservation  of  peace  and  good  order.  After  the  organi- 
zation of  the  General  Assembly,  the  powers  and  duties  of  magis- 
trates and  other  civil  officers  Avere  to  be  regulated  and  defined 
by  the  legislature,  but  their  appointment  Avas  to  remain  Avith  the 
governor. 

For  the  preA^ention  of  crimes  and  injuries,  the  laws  to  be  adopt- 
ed or  made  Avere  to  have  force  in  all  parts  of  the  district,  and  for 
the  execution  of  process,  criminal  and  civil,  the  governor  Avas  to 
make  proper  divisions  of  the  territory,  and  to  lay  out  the  portions 
Avhere  tlie  Indian  titles  had  been  extinguished,  iiWi  time  to  time, 
into  counties  and  townships,  subject  to  future  alteration  by  the 
legislature. 

As  soon  as  there  should  be  five  thousand  free  male  inhabitants, 
of  full  age,  in  the  district,  upon  giving  proof  thereof  to  the  gov- 


THE  CONFEDERATIOK 


205 


ernor,  they  were  to  receive  authority  to  elect  representatives  from 
their  counties  or  townslii})s,  to  represent  them  in  the  General  As- 
sembly. For  every  live  hundred  male  inhabitants  there  was  to 
he  one  representative ; and  so  on  progressively  the  right  of  repre- 
sentation was  to  increase,  until  the  number  of  representatives  should 
amount  to  twenty-live,  after  which  their  numbers  and  proportions 
were  to  be  regulated  by  the  legislature.  The  qualifications  of  a 
representative  were  to  be  previous  citizenship  in  one  of  the  United 
States  for  three  years,  and  residence  in  the  district,  or  a resident 
of  three  years  in  the  district,  with  a fee-simple  estate,  in  either 
case,  of  two  hundred  acres  of  land  within  the  district.  The  quali- 
fications of  electors  were  to  be  a freehold  in  fifty  acres  of  land  in 
the  district,  previous  citizenship  in  one  of  the  United  States,  and 
residence  in  the  district,  or  the  like  freehold  and  two  years’  resi- 
dence in  the  district. 

The  ordinance  then  proceeded  to  state  certain  fundamental  ar- 
ticles of  compact  between  the  original  states  and  the  people  and 
states  in  the  territory,  which  were  to  remain  unalterable,  except  by 
common  consent.  The  first  provided  for  freedom  of  religious  opin- 
ion and  worship.  The  second  provided  for  the  right  to  the  writ  of 
haheas  corpus  ; for  trial  by  jury  ; for  a proportionate  representation 
in  the  legislature  ; for  judicial  proceedings  according  to  the  course 
of  the  common  law  ; for  offences  not  capital  being  bailable ; for 
fines  being  moderate,  and  punishments  not  cruel  nor  unusual ; for 
no  man’s  being  deprived  of  his  liberty  or  property  but  by  the  judg- 
ment of  his  peers  or  the  law  of  the  land  ; for  full  compensation 
for  property  taken  or  services  demanded  for  the  public  ; and  that 
no  law  should  ever  be  made,  or  have  force  in  the  territory,  that 
should  in  any  manner  whatever  interfere  with  or  affect  private 
contracts  or  engagements,  previously  formed  Iona  fide  and  with- 
out fraud.  The  third  provided  for  the  encouragement  of  religion 
and  education,  for  schools,  and  for  good  faith  towards  the  rights 
and  property  of  the  Indian  tribes.  The  fourth  provided  that  the 
territory  and  the  states  to  be  formed  therein  should  forever 
remain  a part  of  the  Confederacy,  subject  to  the  constitutional 
authority  of  Congress  ; that  the  inhabitants  should  be  liable  to 
be  taxed  proportionately  for  the  public  expenses  ; that  the  legis- 
lature in  the  territory  should  never  interfere  with  the  primary 
disposal  of  the  soil  by  Congress,  nor  with  their  regulations  for 


206 


CONSTITUTIONAL  HISTORY. 


securing  the  title  to  purchasers  ; that  no  tax  should  be  imposed 
on  lands  the  property  of  the  United  States ; that  non-resident 
proprietors  should  not  be  taxed  more  than  residents  , and  that 
the  navigable  waters  leading  into  the  Mississippi  and  St.  Lawrence, 
and  the  carrying-places  between  them,  should  be  common  high- 
ways and  forever  free. 

The  fifth  provided  that  there  should  be  formed  in  the  terri- 
tory not  less  than  three  nor  more  than  five  states,  with  certain 
boundaries  ; and  that  whenever  any  of  the  states  should  contain 
sixty  thousand  free  inhabitants,  such  state  should  be  (and  might 
be  before)  admitted  by  its  delegates  into  Congress,  on  an  equal 
footing  with  the  original  states  in  all  respects  whatever,  and  should 
be  at  liberty  to  form  a permanent  constitution  and  state  govern- 
ment, provided  it  should  be  republican,  and  in  conformity  with 
these  articles  of  compact. 

The  sixth  provided  that  there  should  be  neither  slavery  nor 
involuntary  servitude  in  the  territory,  otherwise  than  in  the  pun- 
ishment of  crimes  ; but  that  fugitives  owing  service  in  other  states 
might  be  reclaimed. 

American  legislation  has  never  achieved  anything  more  admi- 
rable, as  an  internal  government,  than  this  comprehensive  scheme. 
Its  provisions  concerning  the  distribution  of  property,  the  prin- 
ciples of  civil  and  religious  liberty  which  it  laid  at  the  foundation 
of  the  communities  since  established  under  its  sway,  and  the  efii- 
cient  and  simple  organization  by  which  it  created  the  first  ma- 
chinery of  civil  society,  are  worthy  of  all  the  praise  that  has  ever 
attended  it.  It  was  not  a plan  devised  in  the  closet  upon  theo- 
retical principles  of  abstract  fitness.  It  was  a constitution  of 
government  drawn  by  men  who  understood,  from  experience, 
the  practical  working  of  the  principles  which  they  undertook  to 
embody.  Those  principles  were,  it  is  true,  to  be  applied  to  a state 
of  society  not  then  formed  ; but  they  were  taken  from  states  of 
society  in  which  they  had  been  tried  with  success.  The  equal 
division  of  property  ; general,  not  universal  suffrage,  but  a suf- 
frage guarded  by  some  degree  of  interest  in  society ; representa- 
tive government ; the  division  of  the  three  grand  departments 
of  political  power  ; freedom  of  religious  opinion  and  worship ; 
the  haleas  corpus,  trial  by  jury,  and  the  course  of  the  common 
law  ; the  right  to  be  bailed  for  offences  not  capital,  and  the  pro- 


THE  CONFEDERATION. 


207 


hibition  of  immoderate  fines  and  cruel  or  unusual  punishments ; 
the  great  principle  of  compensation  for  property  or  service  de- 
manded by  the  public,  and  the  legislative  inviolability  of  contracts; 
the  encouragement  of  schools  and  the  means  of  education — were 
all  taken  from  the  ancient  or  recent  constitutions  of  states,  from 
which  the  greater  part  of  the  inhabitants  of  the  new  territory 
would  necessarily  come.  A community  founded  on  these  prin- 
ciples was  predestined  to  prosperity  and  happiness. 

But  it  was  in  the  provisions  of  the  ordinance  relative  to  the 
admission  into  the  Union  of  the  new  states  to  be  formed  upon  this 
territory  that  the  relation  between  the  existing  government  of 
the  United  States  and  its  great  dependency  was  afterwards  found 
to  involve  serious  difficulties.  The  Union  was  at  that  time  a con- 
federacy of  thirteen  states,  originally  formed  mainly  with  refer- 
ence to  the  exigencies  of  the  war ; and,  although  the  Articles  of 
Confederation  had  been  ratified  under  circumstances  which  gave 
to  the  United  States  the  authority  to  acquire  this  property,  they 
had  vested  in  Congress  no  power  to  enlarge  the  Confederacy  by 
the  admission  of  new  states.  Yet  the  ordinance  undertook  to 
declare  that  new  states  should  be  admitted  into  the  Congress  of 
the  United  States  on  an  equal  footing  with  the  existing  states  in 
all  respects  whatever,  without  proposing  to  submit  that  question 
to  the  original  parties  to  the  confederacy. 

It  does  not  appear  from  contemporary  evidence  that  this  diffi- 
culty attracted  public  attention  at  the  time  of  the  passage  of  the 
ordinance.  In  the  year  1787  the  Confederation  was  laboring 
under  far  more  pressing  and  alarming  defects  than  the  want  of 
strict  constitutional  power  to  create  new  states.  Public  atten- 
tion was  consequently  more  engaged  with  the  consideration  of 
evils  which  affected  the  prosperity  of  the  original  states  them- 
selves, than  with  the  destiny  of  the  new  communities,  or  the 
method  by  which  they  were  to  be  brought  into  the  Union.  It 
was  not  immediately  perceived,  also,  that  a property,  capable  at 
no  distant  day  of  becoming  a vast  mine  of  wealth  to  the  United 
States,  as  a great  and  independent  revenue,  had  come  under  the 
management  of  a single  body  of  men,  constituted  originally  with- 
out reference  to  such  a trust,  and  with  no  declared  constitutional 
provisions  for  its  administration.  When,  however,  the  Constitu- 
tion was  in  the  process  of  formation,  the  necessity  for  provisions 


208 


CONSTITUTIONAL  HISTORY. 


under  which  Congress  could  dispose  of  the  public  lands,  and  by 
Avhich  new  states  could  be  admitted  into  the  Union,  was  at  once 
felt  and  conceded  on  all  sides.' 

Far  more  serious  difficulties,  however,  attended  the  manage- 
ment by  the  Confederation  of  the  interests  of  the  western  coun- 
try-difficulties which  commenced  immediately  after  the  Peace, 
and  continued  to  increase,  until  the  course  taken  by  Congress  had 
nearly  lost  to  the  Union  the  whole  of  that  immense  region  which 
now  pours  its  commerce  down  the  Mississippi  and  its  great  tribu- 
tary waters.  These  difficulties  sprang  from  the  inherent  weakness 
of  the  federal  government — from  the  absolute  incapacity  of  Con- 
gress, constituted  as  it  w^as,  to  deal  wisely,  safely,  and  efficiently 
with  the  foreign  relations  of  the  country  and  its  internal  affairs, 
under  the  delicate  and  critical  circumstances  in  which  it  was  then 
placed.  After  the  Treaty  of  Peace,  the  w^estern  settlements, 
flanked  by  the  dependencies  of  Great  Britain  at  the  north  and  of 
Spain  at  the  south,  and  rapidly  filling  wdth  a bold,  adventurous, 
and  somewhat  lawdess  population,  wdiose  ties  of  connection  wdth 
the  Eastern  States  w^ere  almost  sundered  by  the  remoteness  of 
their  position  and  the  difficulties  of  communication,  stood  upon  a 
pivot  Vv^here  accident  might  have  thro^vn  them  out  of  the  Union. 
This  population  found  themselves  seated  in  a luxuriant  and  fertile 
country,  capable  of  a threefold  greater  production  than  the  states 
east’ward  of  the  Alleghany  and  Appalachian  Mountains,  and  inter- 
sected by  natural  w^ater  communications  of  the  most  ample  char- 
acter, all  tending  to  the  great  highway  of  the  Mississippi.  A soil 
richer  than  any  over  w^hich  the  Anglo-Saxon  race  had  hitherto 
spread  itself  upon  this  continent,  in  any  of  its  temperate  climes ; 
large  plains  and  meadows,  capable,  vrithout  labor,  of  supporting 
millions  of  cattle  ; and  fields  destined  to  vie  wuth  the  most  favored 
lands  on  the  globe  in  the  production  of  wheat,  were  already  ac- 
cumulating upon  the  banks  of  their  great  rivers  a weight  of  prod- 
uce far  beyond  the  necessities  of  subsistence,  and  loudly  demand- 
ing the  means  of  reaching  the  markets  of  the  w^orld.  The  people 
of  the  Atlantic  states  knew  little  of  the  resources  or  situation  of 
this  country.  They  valued  it  chiefly  as  a means  of  paying  the 


’ See  IMr.  Matlison’s  notes  of  the  Debates  in  the  Confederation.  Elliot,  V. 
128,  157,  190,  211,  376,  381. 


NAVIGATION  OF  THE  MISSISSIPPI. 


209 


public  debts  by  the  sale  of  its  hinds;  but  until  they  were  in  im- 
minent (lunger  of  losing  it,  from  the  ineliiciency  of  the  national 
government,  they  bad  little  idea  of  the  su])reme  necessity  of  secur- 
ing for  it  ail  outlet  to  the  sea,  if  they  would  preserve  it  to  the 
Union. 

AVashington,  in  the  autumn  of  1784,  after  bis  retirement  to 
]\[ount  Vernon,  made  a tour  into  the  western  country,  for  the 
express  purjiose  of  ascertaining  by  what  means  it  could  be  most 
effectually  bound  to  the  Union.  The  policy  of  opening  communi- 
cations eastward  by  means  of  the  rivers  flowing  through  Virginia 
to  the  Atlantic  Ocean  struck  him  at  once.  On  his  return  he 
addressed  a letter  to  the  Governor  of  Virginia,  in  which  he  recom- 
mended the  appointment  of  a commission,  to  make  a survey  of 
the  whole  means  of  natural  water  communication  between  Lake 
Erie  and  the  tide-waters  of  Virginia.  He  does  not  seem  at  this 
time  to  have  considered  the  navigation  of  the  Mississippi  as  of 
great  importance  ; but  he  thought  rather  that  the  opening  of  that 
river  would  have  a tendency  to  separate  the  Western  from  the 
Eastern  States.  ‘ A year  later  he  held  a clear  opinion  that  its 
navigation  ought  not  at  present  to  be  made  an  object  by  the 
United  States,  but  that  their  true  policy  was  to  open  all  the  possi- 
ble avenues  between  the  Atlantic  States  and  the  western  territory, 
and  that,  until  this  had  been  done,  the  obstructions  to  the  use  of 
the  Mississippi  had  better  not  be  removed.''  Those  obstructions, 
however,  involved  the  hazard  of  a loss  of  the  territory  to  which  the 


1 His  recommendation  contemplated  'a  survey  of  James  River  and  tlie  Poto- 
mac, from  tide-water  to  their  respective  sources ; then  to  ascertain  tlie  best  port- 
age between  those  rivers  and  the  streams  capable  of  improvement  which  run 
into  the  Ohio;  then  to  traverse  and  survey  those  streams  to  their  junction  with 
the  Ohio;  then,  passing  down  the  Ohio  to  the  mouth  of  the  Muskingum,  to 
ascend  that  river  to  the  carrying-place  to  the  Cuyahoga ; then  down  the  Cuyahoga 
to  Lake  Erie,  and  thence  to  Detroit.  He  also  advised  a survey  of  Big  Beaver 
Creek  and  of  the  Scioto,  and  of  all  the  waters  east  and  west  of  the  Ohio  which 
invited  attention  by  their  proximity  and  the  ease  of  land  transportation  between 
them  and  the  James  and  Potomac  rivers.  “ These  things  being  done,”  he  said, 
“I  shall  be  mistaken  if  prejudice  does  not  yield  to  fl;cts,  jealousy  to  candor,  and 
finalh%  if  reason  and  nature,  thus  aided,  do  not  dictate  what  is  right  and  proper 
to  be  done  ” (Writings  of  Washington,  IX.  65).  This  suggestion  was  adopted, 
and  a commission  appointed. 

2 Writings,  IX.  63,  117-119.  August  22,  1785. 

I.— 14 


210 


CONSTITUTIONAL  HISTORY. 


navigation  of  that  river  had  already  become  extremely  important. 
Their  nature  is,  therefore,  now  to  be  explained. 

The  Treaty  of  Peace  with  Great  Britain  recognized,  as  the 
southern  boundary  of  the  United  States,  a line  drawn  from  a 
point  where  the  thirty-first  degree  of  north  latitude  intersected 
the  river  Mississippi,  along  that  parallel  due  east  to  the  middle  of 
the  river  Appalachicola  ; thence  along  the  middle  of  that  river  to 
its  junction  with  the  Flint  Hiver ; thence  in  a straight  line  to  the 
head  of  St.  Mary’s  Kiver;  and  thence  down  the  middle  of  that 
river  to  the  Atlantic  Ocean.*  At  the  time  of  the  negotiation  of 
this  treaty  West  Florida  was  in  the  possession  of  Spain;  and  a 
secret  article  Avas  executed  by  the  British  and  American  plenipo- 
tentiaries, Avhich  stipulated  that  in  case  Great  Britain,  at  the  con- 
clusion of  a peace  Avith  Spain,  should  recover  or  be  put  in  possses- 
sion  of  West  Florida,  the  north  boundary  betAveen  that  province 
and  the  United  States  should  be  a line  draAvn  from  the  mouth  of 
the  river  Yassous,  where  it  unites  Avith  the  river  Mississippi,  due 
east  to  the  riA^er  Appalachicola."  The  treaty  also  stipulated  that 
the  navigation  of  the  Mississippi,  from  its  source  to  the  ocean, 
should  forever  remain  free  and  open  to  the  subjects  of  Great 
Britain  and  the  citizens  of  the  United  States." 

When  the  treaty  came  to  be  ratified  and  published,  in  178d,  the 
Spanish  government  AA^as  already  acquainted  Avith  this  secret 
article.  Justly  assuming  that  no  treaty  between  Great  Britain 
and  the  United  States  could  settle  the  boundaries  between  the 
territories  of  the  latter  poAver  and  those  of  Spain,  or  giA^e  of  itself 
a right  to  navigate  a river  passing  Avholly  through  their  domin- 
ions, they  immediately  caused  it  to  be  signified  to  Congress  that, 
until  the  limits  of  Louisiana  and  the  two  Floridas  should  be  set- 
tled and  determined,  by  an  admission  on  the  part  of  Spain  that 
they  had  been  rightfully  described  in  the  treaty  Avith  England, 
they  must  assert  their  territorial  claims  to  the  exclusiA^e  control  of 
the  river ; and  also  that  the  navigation  Avould  under  no  circum- 
stances be  conceded,  Avhile  Spain  held  the  right  to  its  control.’ 

1 Article  II.  Journals,  IX.  2G. 

2 Executed  November  30,  1782.  Secret  Journals,  III.  338. 

® Article  VIII.  Journals,  IX.  20. 

^ June  25,  1784.  Communicated  to  Congress  November  19,  1784.  Secret 
Journals,  III.  517,  518. 


NAVIGATION  OF  THE  MISSISSIPPI. 


211 


To  accommodate  these  difficulties,  Congress  resolved  to  send  Mr. 
Jay,  their  secretary  of  foreign  affairs,  to  Spain;  but  his  depart- 
ure Avas  prevented  by  tlie  arrival  in  the  United  States  of  Don 
Diego  Guardocpii,  as  minister  from  Spain,  charged  with  the  nego- 
tiation of  a treaty.' 

Preparatory  to  this  negotiation,  the  first  instruction  which  Mr. 
Jay  received  from  Congress  was,  to  insist  upon  the  right  of  the 
United  States  to  the  territorial  boundaries  and  the  free  navigation 
of  the  Mississippi,  as  settled  by  their  treaty  with  Great  Britain." 
Upon  this  point,  however,  the  Spanish  minister  Avas  immoA^able. 
A long  negotiation  ensued,  in  Avdiich  he  evinced  entire  readiness 
to  make  a liberal  commercial  treaty  Avith  the  United  States,  con- 
ceding to  their  trade  A^ery  important  advantages  ; but  at  the  same 
time  refusing  the  right  to  use  the  Mississippi.  Such  a treaty  Avas 
regarded  as  extremely  important  to  the  United  States.  There  Avas 
scarcely  a single  production  of  this  country  that  could  not  be 
advantageously  exchanged  in  the  Spanish  European  ports  for  gold 
and  silver.  The  infiuence  of  Spain  in  the  Mediterranean,  Avith 
Portugal,  Avith  F ranee,  Avith  the  States  of  Barbary,  and  the  trade 
AAuth  her  Canaries  and  the  adjacent  islands,  rendered  a commercial 
alliance  Avith  her  of  tlie  utmost  importance.  That  importance 
AA^as  especially  felt  by  the  Eastern  and  Middle  States,  whose  in- 
fluence in  Congress  thus  became  opposed  to  the  agitation  of  the 
subject  of  opening  the  Mississippi."  Indeed,  the  prevailing  opinion 
in  Congress,  at  this  time,  Avas  for  not  insisting  on  the  right  of  navi- 
gation as  a necessary  requisite  in  the  treaty  Avith  Spain  ; and  there 
AA'ere  some  important  and  influential  persons  in  that  body  ready 
to  agree  to  the  abandonment  of  the  right,  rather  than  defer  longer 
a free  and  liberal  system  of  trade  Avith  a poAver  able  to  give  con- 
ditions so  advantageous  to  the  United  States.^  The  Eastern  States 

^ Guardoqui  arrived  and  was  recognized  July  2, 1785.  Secret  Journals,  III.  503. 

- August  25, 1785.  Secret  Journals,  III.  585,  586. 

® See  the  communication  made  by  Mr.  Jay  to  Congress,  August  3,  1786.  Se- 
cret Journals,  lY.  43. 

* Henry  Lee,  then  in  Congress,  wrote  to  AA^ashington  on  the  3d  of  July,  1786, 
as  follows:  “Your  reasoning  is  perfectly  conformable  to  the  prevalent  doctrine 
on  that  subject  in  Congress.  AYe  are  very  solicitous  to  form  a treaty  with  Spain 
for  commercial  purposes.  Indeed,  no  nation  in  Europe  can  give  us  conditions  so 
advantageous  to  our  trade  as  that  kingdom.  The  carrying  business  they  are  like 
ourselves  in,  and  this  common  source  of  difficulty  in  adjusting  commercial  trea- 


212 


CONSTITUTIONAL  HISTORY. 


considered  a commercial  treaty  with  Spain  as  the  best  remedy 
for  their  distresses,  which  flowed,  as  they  believed,  from  the  decay 
of  their  commerce.  Two  of  the  Middle  States  joined  in  this  opin- 
ion. Virginia,  on  the  other  hand,  opposed  all  surrender  of  the 
right.  ^ 

In  this  posture  of  affairs  Mr.  Jay  proposed  to  Congress  a mid- 
dle course.  Believing,  as  Washington  continued  to  believe,''  that 


ties  between  otlier  nations  does  not  apply  to  America  and  Spain.  But,  my  dear 
General,  I do  not  think  you  go  far  enough.  Rather  than  defer  longer  a free  and 
liberal  system  of  trade  with  Spain,  why  not  agree  to  the  exclusion  of  the  Missis- 
sippi ? This  exclusion  will  not,  cannot,  exist  longer  than  the  infiincy  of  the  west- 
ern emigrants.  Therefore,  to  these  people  what  is  now  done  cannot  be  impor- 
tant. To  the  Atlantic  States  it  is  highly  important ; for  we  have  no  prospect  of 
bringing  to  a conclusion  our  negotiations  with  the  court  of  Madrid  but  by  yield- 
ing the  navigation  of  the  Mississippi.  Their  minister  here  is  under  positive 
instructions  on  that  point.  In  all  otlier  arrangements  the  Spanish  monarch  will 
give  to  the  states  testimonies  of  his  regard  and  friendship.  And  I verily  believe 
that,  if  the  above  difficulty  should  be  removed,  we  should  soon  experience  the 
advantages  which  would  flow  from  a connection  with  Spain.”  Writings  of 
Washington,  IX.  173,  note. 

^ Washington’s  AYritings,  IX.  205,  206,  note. 

^ Washington  had  not  changed  his  opinion  at  the  time  of  these  negotiations. 
On  the  18th  of  June,  1786,  he  wrote  to  Henry  Lee,  in  answer  to  his  letter  above 
quoted  ; “ The  advantages  with  which  the  inland  navigation  of  the  rivers  Poto- 
mac and  James  is  pregnant  must  strike  every  mind  that  reasons  upon  the  subject; 
but  there  is,  I perceive,  a diversity  of  sentiment  respecting  the  benefits  and  con- 
sequences which  may  flow  from  the  free  and  immediate  use  of  the  Mississippi. 
My  opinion  of  this  matter  has  been  uniformly  the  same ; and  no  light  in  which  I 
have  been  able  to  consider  the  subject  is  likely  to  change  it.  It  is,  neither  to 
relinquish  nor  to  push  our  claim  to  this  navigation,  but  in  the  meanwhile  to  open 
nil  the  communications  wdiich  Nature  has  afforded  between  the  Atlantic  States 
and  the  western  territory,  and  to  encourage  the  use  of  them  to  the  utmost.  In 
my  judgment,  it  is  matter  of  very  serious  concern  to  the  well-being  of  the  former 
to  make  it  the  interest  of  the  latter  to  trade  with  them ; without  which,  the  ties 
of  consanguinity,  which  are  weakening  every  day,  will  soon  be  no  bond,  and  we 
shall  be  no  more,  a few  years  hence,  to  the  inhabitants  of  that  country,  than  the 
British  and  Spaniards  are  at  this  day;  not  so  much,  indeed,  because  commercial 
connections,  it  is  well  known,  lead  to  others,  and,  united,  are  difficult  to  be  broken. 
These  must  take  place  with  the  Spaniards  if  the  navigation  of  the  Mississippi  is 
opened.  Clear  I am  that  it  w^ould  be  for  the  interest  of  tlie  western  settlers,  as 
low  down  the  Ohio  as  the  Big  Kenhawa,  and  back  to  the  Lakes,  to  bring  their 
produce  through  one  of  the  channels  I have  named  ; but  the  way  must  be  cleared, 


NAVIGATION  OF  THE  MISSISSIPPI. 


213 


tlic  niivigiitioii  of  the  Mississippi  wiis  not  cit  that  time  very  im- 
portant, and  that  it  would  not  become  so  for  twenty-five  or  thirty 
years,  he  suggested  tliat  the  treaty  should  he  limited  to  tliat 
period,  and  that  one  of  its  articles  should  stipulate  that  the  United 
States  would  forbear  to  use  tlie  navigation  of  the  river  below 
their  territories  to  the  ocean.  It  was  supposed  that  such  a for- 
bearance, carrying  no  surrender  of  the  right,  would,  at  the  expira- 
tion of  the  treaty,  leave  the  whole  subject  in  as  favorable  a posi- 
tion as  that  in  which  it  now  stood.  Besides,  the  only  alternative 
to  obtaining  such  an  article  from  Spain  was  to  make  war  with 
her,  and  enforce  the  opening  of  the  river.  The  experiment,  at 
least,  it  was  argued,  would  do  no  injury,  and  might  produce  much 
good.* 

These  arguments  prevailed  so  far  as  to  cause  a change  in  Mr. 
Jay’s  instructions,  by  a vote,  which  was  deemed  by  him  sufficient 
to  confer  authority  to  obtain  such  an  article  as  he  had  suggested, 
but  Avhich  was  clearly  unconstitutional.  Seven  states  against 
five  voted  to  rescind  the  instructions  of  August  25, 1785,  by  which 
the  secretary  had  been  directed  to  insist  on  the  right  of  naviga- 

and  made  easy  and  obvious  to  them,  or  else  the  ease  with  whicli  people  glide 
down  streams  will  give  a different  bias  to  their  thinking  and  acting.  Whenever 
the  new  states  become  so  populous  and  so  extended  to  the  westwardjis  really  to 
need  it,  there  will  be  no  power  which  can  deprive  them  of  the  use  of  the  Missis- 
sippi. Why,  then,  should  we  prematurely  urge  a matter  which  is  displeasing, 
and  may  produce  disagreeable  consequences,  if  it  is  our  interest  to  let  it  sleep  ? 
It  may  require  some  management  to  quiet  the  restless  and  impetuous  spirits  of 
Kentuckv,  of  whose  conduct  I am  more  apprehensive  in  this  business  than  I am 
of  all  the  opposition  that  will  be  given  by  the  Spaniards.”  IX.  172, 173. 

On  the  26th  of  July  of  the  same  year  he  again  wrote  to  the  same  gentleman, 
expressing  the  same  opinions;  and  on  the  31st  of  October  he  said  that  these 
sentiments  “ are  controverted  by  only  one  consideration  of  weight,  and  that  is, 
the  operation  which  the  occlusion  of  the  river  may  have  on  the  minds  of  the 
western  settlers,  who  will  not  consider  the  subject  in  a relative  point  of  view,  or 
on  a comprehensive  scale,  and  may  be  influenced  by  the  demagogues  of  the  coun- 
try to  acts  of  extravagance  and  desperation,  under  the  popular  declamation  that 
their  interests  are  sacrificed.”  In  July,  1787,  he  retained  the  same  views  as  to 
the  true  policy  of  the  different  sections  of  the  country  interested  in  this  question, 
but  admitted  that,  from  the  spirit  manifested  at  the  West,  it  had  become  a moot 
point  to  determine,  when  every  circumstance  was  brought  into  view,  what  was 
best  to  be  done.  IX.  172,  180,  205,  261. 

^ See  Mr.  Jay’s  reasoning,  Secret  Journals,  IV.  53,  54. 


214 


CONSTITUTIONAL  HISTORY. 


tion,  and  not  to  conclude  or  sign  any  treaty  until  he  had  commu- 
nicated it  to  Congress. ‘ Mr.  Jay  accordingly  agreed  with  the 
Spanish  minister  on  an  article  which  suspended  the  use  of  the 
Mississippi,  without  relinquishing  the  right  asserted  by  the  Uni- 
ted States.'’ 

Mdiile  these  proceedings  were  going  on,  and  before  the  vote 
of  seven  states  in  Congress  had  been  obtained  in  favor  of  the 
present  suspension  of  this  difficult  controversy,  an  occurrence 
took  place  at  Natchez  which  aroused  the  jealousy  of  the  whole 
West.  A seizure  was  made  there,  by  the  Spanish  authorities,  of 
certain  American  property,  which  had  been  carried  down  the 
river  for  shipment  or  sale  at  New  Orleans.^  The  owner,  return- 
ing slowly  in  the  autumn  to  his  home,  in  the  western  part  of 
North  Carolina,  by  a tedious  land  journey  through  Kentucky, 
detailed  everywhere  the  story  of  his  wrongs  and  of  the  loss  of 
his  adventure.  The  news  of  this  seizure,  as  it  circulated  up  the 
valley  from  below,  encountered  the  intelligence  coming  from  the 
eastward,  that  Congress  proposed  to  surrender  the  present  use  of 
the  Mississippi.  Alarm  and  indignation  fired  the  whole  popula- 
tion of  the  western  settlements.  They  believed  themselves  to  be 
on  the  point  of  being  sacrificed  to  the  commercial  policy  of  the 
Atlantic  States ; and,  feeling  that  they  stood  in  the  relation  of 
colonists  to  the  rest  of  the  Union,  they  held  language  not  unlike 
that  which  the  old  colonists  had  held  towards  England  in  the 
earlier  days  of  the  great  controversy. 

They  surveyed  the  magnificent  region  which  they  were  sub- 


1 August  29th,  1786.  Secret  Journals,  IV.  109,  110.  The  states  wliich  voted 
to  rescind  these  instructions  were  New  Hampshire,  Massachusetts,  Rhode  Isl- 
and, Connecticut,  New  York,  New  Jersey,  Pennsylvania,  and  Maryland;  Vir- 
ginia, North  and  South  Carolina,  and  Georgia,  voted  not  to  rescind.  Another 
resolution  was  carried  on  the  following  day  (August  30th),  by  the  votes  of  seven 
states,  instructing  the  secretary  to  insist  on  the  territorial  limits  or  boundaries 
of  the  United  States,  as  fixed  in  the  Treaty  with  Great  Britain,  and  not  to  form 
any  treaty  with  the  Spanish  minister  unless  those  boundaries  were  acknowledged 
and  secured.  Ibid.,  111-116. 

^ This  agreement  was  made  between  the  29th  of  August,  the  date  of  the 
rescinding  resolution,  and  the  6th  of  October,  1786.  See  Mr.  Jay’s  communi- 
cation to  Congress  under  the  latter  date.  Secret  Journals,  IV.  297-301. 

2 This  seizure  was  made  on  the  6th  of  June,  1786.  Secret  Journals,  IV.  326. 


NAVIGATION  OF  THE  MISSISSIPPI. 


215 


(luing  from  the  (lominion  of  Nature— the  inexhaustible  resources 
of  its  soil  already  yielding  an  abundance,  which  needed  only  a 
free  avenue  to  the  ocean  to  make  them  rich  and  ])rosperous — and 
they  felt  that  the  mighty  river  which  swept  by  them,  with  a vol- 
ume of  waters  capable  of  sustaining  the  navies  of  the  world,  had 
been  destined  by  Providence  as  a natural  channel  through  which 
the  productions  of  their  imperial  valley  should  be  made  to  swell 
the  commerce  of  the  globe.  But  the  Spaniard  was  seated  at  the 
outlet  of  this  noble  stream,  sullenly  refusing  to  them  all  access 
to  the  ocean.  To  him  they  must  pay  tribute.  To  enrich  him 
they  must  till  those  luxuriant  lands,  which  gave,  by  an  almost 
spontaneous  production,  the  largest  return  which  American  labor 
had  yet  reaped  under  the  industry  of  its  own  free  hands.  Their 
proud  spirits,  unaccustomed  to  restraint,  and  expanding  in  a lib- 
erty unknown  in  the  older  sections  of  the  country,  could  not  brook 
this  vassalage.  Into  the  comprehensive  schemes  of  statesmen, 
who  sought  to  unite  them  with  the  East  by  a great  chain  of  in- 
ternal improvements,  and  thus  to  blend  the  interests  of  the  West 
with  the  commercial  prosperity  of  the  whole  country,  they  were 
too  impatient,  and  too  intent  upon  the  engrossing  object  of  their 
own  immediate  advantage,  to  be  able  to  enter. 

What,  they  exclaimed,  could  have  induced  the  legislature  of 
the  IJnited  States,  which  had  been  applauded  for  their  .assertion 
and  defence  of  the  rights  and  privileges  of  the  country,  so  soon 
to  endeavor  to  subject  a large  part  of  their  dominion  to  a slavery 
worse  than  that  to  Avhich  Great  Britain  had  presumed  to  subject 
any  part  of  hers  ? To  give  up  to  the  Spaniards  the  greatest  share 
of  the  fruits  of  their  toils — to  surrender  to  them,  on  their  own 
terms,  the  produce  of  that  large,  rich,  and  fertile  country,  and 
thus  to  enable  them  to  command  the  benefits  of  every  foreign 
market — was  an  intolerable  thought.  What  advantage,  too,  would 
it  be  to  the  Atlantic  States,  Avhen  Spain,  from  the  amazing  re- 
sources of  the  Mississippi,  could  undersell  them  in  every  part  of 
the  world  ? Did  they  think  by  this  course  of  policy  to  prevent 
emigration  from  a barren  country,  loaded  with  taxes  and  impov- 
erished by  debts,  to  the  most  luxurious  and  fertile  soil  within  the 
limits  of  the  Union  ? The  idea  was  vain  and  presumptuous.  As 
well  might  the  fishes  of  the  sea  be  prevented  from  gathering  on 
a bank  that  afforded  them  ample  nourishment.  The  best  and 


216 


CONSTITUTIONAL  HISTORY. 


largest  part  of  the  United  States  was  not  thus  to  be  left  unculti- 
vated— a home  for  savages  and  wild  beasts.  Providence  had 
destined  it  for  nobler  purposes.  It  was  to  be  the  abode  of  a great, 
prosperous,  and  cultivated  people — of  Americans  in  feeling,  in 
rights,  in  spirit,  incapable  of  becoming  the  bondmen  of  Spain, 
while  the  rest  of  their  country  remained  free.  Their  own  strength 
could  achieve  for  them  what  the  national  power  refused  or  was 
unable  to  obtain.  Twenty  thousand  effective  men,  west  of  the 
Alleghanies,  Avere  ready  to  rush  to  the  mouth  of  the  Mississippi 
and  drive  the  Spaniards  into  the  sea.  Great  Britain  stood  with 
open  arms  to  receive  them.  If  not  countenanced  and  succored 
by  the  Federal  government,  their  allegiance  would  be  throAvn  off, 
and  the  United  States  would  find  too  late  that  they  AA^ere  as 
ignorant  of  the  great  valley  of  the  Mississippi  as  England  A\^as 
of  the  Atlantic  States  Avhen  the  contest  for  independence  began.' 

^ See  the  documents  laid  before  Congress,  April  13,  1787.  Secret  Journals, 
IV.  315-328.  On  the  30th  of  Januaiy,  1787,  IVIr.  Jefferson  thus  writes  to  Mr. 
Madison,  from  Paris  ; If  these  transactions  give  me  no  uneasiness,  I feel  very 
diflerently  at  another  piece  of  intelligence,  to  wit,  the  possibility  that  the  navi- 
gation of  the  Mississippi  may  be  abandoned  to  Spain.  I never  had  any  interest 
westward  of  the  Alleghany;  and  I never  will  have  any.  But  I have  had  great 
opportunities  of  knowing  the  character  of  the  people  who  inhabit  that  country  ; 
and  I will  venture  to  say  that  the  act  wliich  abandons  the  navigation  of  the 
Mississippi  is  an  act  of  separation  between  the  eastern  and  western  country. 
It  is  a relinquishment  of  five  parts  out  of  eight  of  the  territory  of  the  United 
States;  an  abandonment  of  the  fairest  subject  for  the  paAunent  of  our  public 
debts,  and  the  chaining  those  debts  on  our  own  necks,  in  perpetuam.  I have 
the  utmost  confidence  in  the  honest  intentions  of  those  who  concur  in  tins 
measure  ; but  I lament  their  want  of  acquaintance  with  the  character  and  physi- 
cal advantages  of  the  people,  who,  right  or  wrong,  will  suppose  their  interests 
sacrificed  on  this  occasion  to  the  contrary  interests  of  that  part  of  the  Confed- 
eracy in  possession  of  present  power.  If  they  declare  themselves  a separate 
people,  we  are  incapable  of  a single  effort  to  retain  them.  Our  citizens  can 
never  be  induced,  either  as  militia  or  as  soldiers,  to  go  there  to  cut  the  throats 
of  their  own  brothers  and  sons,  or,  rather,  to  be  themselves  the  subjects  instead 
of  the  perpetrators  of  the  parricide.  Nor  would  that  country  quit  the  cost  of 
being  retained  against  the  will  of  its  inhabitants,  could  it  be  done.  But  it 
cannot  be  done.  They  are  able  already  to  rescue  the  navigation  of  the  Missis- 
sippi out  of  the  hands  of  Spain,  and  to  add  New  Orleans  to  their  own  territory. 
They  will  be  joined  by  the  inhabitants  of  Louisiana.  This  will  bring  on  a war 
between  them  and  Spain  ; and  that  will  produce  the  question  with  us,  whether 
it  will  not  be  worth  our  while  to  become  parties  with  them  in  the  war,  in  order 


NAVIGATION  OF  THE  MISSISSIPPI. 


217 


Such  was  the  feeling  that  prevailed  in  the  western  country 
as  soon  as  it  became  known  that  a treat}"  was  actually  pending, 
by  which  the  right  to  navigate  the  Mississi})pi  might  be  suspended 
for  a quarter  of  a century.  That  it  should  have  been  accompa- 
nied by  acts  of  retaliation  and  outrage  against  the  property  of 
Spanish  subjects  was  naturally  to  have  been  expected.  General 
George  Kogers  Clarke,  pretending  to  authority  from  the  state  of 
A'irginia,  undertook  to  enlist  men  and  establish  a garrison  at  Port 
St.  Vincennes,  ostensibly  for  the  protection  of  the  district  of  Ken- 
tucky, then  under  the  jurisdiction  of  Virginia.  He  made  a seizure 
there  of  some  Spanish  goods  for  the  purpose  of  clothing  and  sub- 
sisting his  men,  and  sent  an  officer  to  the  Illinois,  to  advise  the  set- 
tlers there  of  the  seizures  of  American  property  made  at  Hatch ez, 
and  to  recommend  them  to  retaliate  for  any  outrages  the  Span- 
iards might  commit  in  that  country.^ 

The  executive  of  Virginia  disavowed  these  acts,  as  soon  as 
officially  informed  of  them ; ordered  the  parties  to  be  brought  to 
punishment ; and  sent  a formal  disclaimer,  through  their  dele- 
gates in  Congress,  to  the  Spanish  minister."*  Guardoqui  was  not 
disturbed.  He  expected  these  occurrences,  and  maintained  his 
ground,  refusing  to  yield  the  right  of  navigating  the  river ; and 
having  assented  to  Mr.  Jay’s  proposal  of  an  article  which  sus- 
pended the  use  for  a period  of  twenty-five  years,  he  was  quite 
ready  to  go  on  and  conclude  the  treaty. 

The  people  of  the  western  country,  however,  began  to  form 
committees  of  correspondence,  in  order  to  unite  their  counsels 
and  interests."  The  inhabitants  of  Kentucky  sent  a memorial  to 
the  General  Assembly  of  Virginia,  which  induced  them  to  in- 
struct their  delegates  in  Congress  to  oppose  any  attempt  to  sur- 
render the  right  of  the  United  States  to  the  free  use  of  the  Mis- 
sissippi, as  a dishonorable  departure  from  the  comprehensive  and 
benevolent  feeling  that  constituted  the  vital  principle  of  the 


to  reunite  tliem  with  us,  and  thus  correct  our  error.  And  were  I to  permit  my 
forebodings  to  go  one  step  furtlier,  I should  predict  that  the  inhabitants  of  the 
United  States  would  force  their  rulers  to  take  the  affirmative  of  that  question. 
I wish  I may  be  mistaken  in  all  these  opinions.”  Jefferson,  II.  87. 

^ Secret  Journals,  IV.  311-313.  2 February  28th,  1787. 

3 Madison.  Elliot’s  Debates,  V.  97. 


218 


CONSTITUTIONAL  HISTORY. 


Confederation,  and  as  provoking  the  just  resentment  and  re- 
proaches of  the  western  people,  whose  essential  rights  and  in- 
terests would  be  thereby  sacrificed.  They  also  instructed  their 
delegates  to  urge  such  negotiations  with  Spain  as  would  obtain 
her  consent  to  regulations  for  the  mutual  and  common  use  of  the 
river.'  The  members  from  Virginia,  with  one  exception,  con- 
curred in  the  policy  of  these  instructions,''  and  at  first  addressed 
themselves  to  some  conciliatory  expedient  for  obviating  the  effect 
of  the  vote  of  seven  states. 

They  first  represented  to  Guardoqui  that  it  would  be  extremely 
impolitic,  both  for  the  United  States  and  Spain,  to  make  any 
treaty  which  should  have  the  effect  of  shutting  up  the  Mississippi. 
They  stated  to  him  that  such  a treaty  could  not  be  enforced  ; 
that  it  would  be  the  means  of  peopling  the  western  country  with 
increased  rapidity,  and  would  tend  to  a separation  of  that  coun- 
try from  the  rest  of  the  Union  ; that  Great  Britain  would  be  able 
to  turn  the  force  that  would  spring  up  there  against  Spanish 
America  ; and  that  the  result  would  be  the  creation  of  a power 
in  the  valley  of  the  Mississippi  hostile  both  to  Spain  and  the 
United  States.  These  representations  produced  no  impression. 
The  Spanish  minister  remained  firm  in  the  position  Avhich  he 
had  held  from  the  first,  that  Spain  never  would  concede  the  claim 
of  the  United  States  to  navigate  the  river.  He  answered,  that 
the  result  of  what  had  been  urged  was,  that  Congress  could  make 
no  treaty  at  all,  and  consequently  that  the  trade  of  tlie  United 
States  must  remain  liable  to  be  excluded  from  the  ports  of  Spain.' 

Foiled  in  this  quarter,  the  next  expedient,  for  those  who  felt 
the  necessity  of  preventing  such  a treaty  as  had  been  contem- 
plated, was  to  gain  time,  by  transferring  the  negotiation  to  Ma- 
drid ; and  Mr.  Madison  introduced  a resolution  into  Congress 
for  this  purpose,  which  was  referred  to  the  secretary  for  foreign 


^ These  instructions  were  adopted  in  November,  178G.  Pitkin,  II.  207.  They 
w^ere  laid  before  Congress  April  19,  1787.  Madison.  Elliot’s  Debates,  V.  103. 

^ Henry  Lee  did  not  approve  of  this  policy.  See  Washington’s  Works,  IX. 
205,  note. 

^ See  Madison’s  account  of  two  interviews  wdth  Guardoqui,  March  13  and  19, 
1787.  Elliot,  V.  98,  100.  At  the  first  of  these  interviews  Guardoqui  stated 
that  he  had  had  no  conference  with  Mr.  Jay  since  the  previous  October,  and 
never  expected  to  confer  with  him  again. 


NAVIGATION  OF  THE  MISSISSIPPI. 


219 


Affairs.'  In  a few  days  the  secretary  reported  against  the  pro- 
posal, and  nothing  remained  for  the  opponents  of  the  treaty  but 
to  attack  directly  the  vote  of  seven  states,  under  which  the  secre- 
tary had  acted  in  proceeding  to  adjust  with  the  Spanish  minister 
an  article  for  suspending  the  right  of  the  United  States  to  the 
common  use  of  the  river  below  their  southern  boundary. 

The  Articles  of  Confederation  expressly  declared  that  the 
United  States  should  not  enter  into  any  treaty  or  alliance  unless 
nine  states  in  Congress  assented  to  the  same."'  It  was  very  justly 
contended,  therefore,  that  to  proceed  to  negotiate  a treaty  au- 
thorized by  a vote  of  only  seven  states  would  expose  the  United 
States  to  great  embarrassment  with  the  other  contracting  party, 
since  the  vote  made  it  certain  that  the  treaty  could  not  be  consti- 
tutionally ratified;  and  that  the  vote  itself,  having  passed  in  a 
case  requiring  the  assent  of  nine  states,  was  not  valid  for  the  pur- 
pose intended  by  it.  This  was  not  denied  ; but  the  advocates  of 
the  treaty,  by  means  of  a parliamentary  rule,  resisted  the  intro- 
duction of  a resolution  to  rescind  the  votes  of  seven  states.' 

But  while  this  dangerous  subject  was  pending,  the  affairs  of 
the  country  had  taken  a new  turn.  The  convention  at  Annapolis 
had  been  held,  in  the  autumn  of  1786,  and  the  convention  called 
to  revise  the  system  of  the  federal  government  was  to  meet  in 
May,  1787.  It  had  become  sure  and  plain  that  a large  increase 
of  the  powers  of  the  national  government  was  absolutely  essen- 
tial to  the  continuance  of  the  Union  and  the  prosperity  of  the 
states.  Every  day  the  situation  of  the  country  was  becoming 
more  and  more  critical.  Xo  money  came  into  the  federal  treas- 
ury ; no  respect  was  paid  to  the  federal  authority ; and  all  men 
saw  and  admitted  that  the  Confederation  was  tottering  to  its  fall. 
Some  prominent  persons  in  the  Eastern  States  were  suspected  of 
leaning  towards  monarchy ; others  openly  predicted  a partition  of 

^ April  18th,  1787.  Madison.  Elliot,  V.  102.  On  the  next  day  (April  19th) 
the  instructions  of  Virginia  were  laid  before  Congress,  but  a motion  to  refer  them 
also  to  the  secretary  was  lost,  Massachusetts  and  New  York  voting  against  it, 
and  Connecticut  being  divided  (Ibid.).  When  Mr.  Jay’s  report  came  under 
consideration,  Mr.  Gorham  of  Massachusetts,  according  to  Mr.  Madison,  avowed 
his  opinion  that  the  shutting  of  the  Mississippi  would  be  advantageous  to  the 
Atlantic  States,  and  wished  to  see  it  shut.  Ibid.,  103. 

^ Article  IX,  3 Madison.  Elliot,  V.  104, 105. 


220  CONSTITUTIONAL  HISTORY. 

the  states  into  two  or  more  confederacies ; and  the  distrust  which 
had  been  created  by  the  project  for  closing  the  Mississippi  ren- 
dered it  extremely  probable  that  the  western  country,  at  least, 
would  be  severed  from  the  Union. 

The  advocates  of  that  project  recoiled,  therefore,  from  the 
dangers  which  they  had  unwittingly  created.  They  saw  that  the 
crisis  required  that  harmony  and  confidence  should  be  studiously 
cherished,  now  that  the  great  enterprise  of  remodelling  the  gov- 
ernment upon  a firmer  basis  was  to  be  attempted.  They  saw  that 
no  new  powers  could  be  obtained  for  the  federal  system,  if  the 
government  then  existing  were  to  burden  itself  with  an  act  so 
certain  to  be  the  source  of  dissension,  and  so  likely  to  cause  a dis- 
memberment of  the  Confederacy,  as  the  closing  of  the  Mississippi. 
Like  wise  and  prudent  men,  therefore,  they  availed  themselves  of 
the  expected  and  probable  formation  of  a new  government  as  a 
fit  occasion  for  disposing  of  this  question ; and  after  an  effort  to 
quiet  the  apprehensions  that  had  been  aroused,  the  whole  matter 
was  postponed,  by  general  consent,  to  await  the  action  of  the 
Convention  of  May,  1787.^  After  the  Constitution  had  been 
formed  and  adopted,  the  negotiation  was  formally  referred  to  the 
new  federal  government  which  was  about  to  be  organized,  in 
March,  1789,  with  a declaration  of  the  opinion  of  Congress  that 
the  free  navigation  of  the  river  Mississippi  was  a clear  and  essen- 
tial right  of  the  United  States,  and  ought  to  be  so  considered  and 
supported.'"  


^ Madison.  Elliot,  V.  104,  105. 

^ September  16, 1788.  Secret  Journals,  IV.  449-454. 


CHAPTEE  XY. 

1783-1787. 

Decay  and  Failure  of  the  Confederation. — Progress  of  Opin- 
ion.— Steps  wiiicn  led  to  the  Convention  of  1787. — Influence 

AND  Exertions  of  Hamilton. — Meeting  of  the  Convention. 

The  prominent  defects  in  the  Confederation,  which  have  been 
described  in  the  previous  chapters,  and  which  were  so  rapidly 
developed  after  the  treaty  of  1783,  made  it  manifest  that  a mere 
league  between  independent  states,  with  no  power  of  direct  legis- 
lation, was  not  a government  for  a country  like  this  in  a time  of 
peace.  They  showed  that  this  compact  between  the  states,  with- 
out any  central  arbiter  to  declare  or  power  to  enforce  the  duties 
which  it  involved,  could  not  long  continue.  It  had,  indeed,  an- 
swered the  great  purpose  of  forming  the  Union,  b}^  bringing  the 
states  into  relations  with  each  other,  the  continuance  of  which 
was  essential  to  liberty ; since  nothing  could  follow  the  rupture 
of  those  relations  but  the  re-establishment  of  European  pdwer,  or 
the  native  despotism  which  too  often  succeeds  to  civil  commotion. 
By  creating  a corporate  body  of  confederate  states,  and  by  ena- 
bling them  to  go  into  the  money-markets  of  Europe  for  the  means 
of  carrying  on  and  concluding  the  war,  the  Confederation  had 
made  the  idea  and  the  necessity  of  a union  familiar  to  the  popu- 
lar mind.  But  the  purposes  and  objects  of  the  Avar  Avere  far  less 
complex  and  intricate  than  the  concerns  of  peace.  It  was  com- 
paratively easy  to  borrow  money;  it  Avas  another  thing  to  pay  it. 
The  federal  poAA^er,  under  the  Confederation,  had  little  else  to  do, 
before  the  peace,  than  to  administer  the  concerns  of  an  army  in 
the  field,  and  to  attend  to  the  foreign  relations  of  the  country,  as 
yet  not  complicated  Avith  questions  of  commerce.  But  the  A^ast 
duties,  capable  of  being  discharged  by  no  other  poAver,  which 
came  rapidly  into  existence  before  the  creation  of  the  machinery 
essential  to  their  performance,  exhibited  the  Confederation  in  an 
alarming  attitude. 


222  CONSTITUTIONAL  HISTORY. 

It  was  found  to  be  destitute  of  the  essence  of  political  sover- 
eignty— the  power  to  compel  the  individual  inhabitants  of  the 
country  to  obey  its  decrees.  It  was  a system  of  legislation  for 
states  in  their  corporate  and  collective  capacities,  and  not  for  the 
individuals  of  whom  those  states  were  composed.  It  could  not 
levy  a dollar  by  way  of  impost  or  assessment  upon  the  property 
of  a citizen.  It  had  no  means  of  annulling  the  action  of  a state 
legislature  w^hich  conflicted  with  the  lawful  and  constitutional 
requirements  of  Congress.  / It  made  treaties,  and  was  forced  to 
stand  still  and  see  them  violated  by  its  own  members,  for  whose 
benefit  they  had  been  made./  It  owed  an  enormous  debt,  and  saw 
itself,  year  by  year,  growing  more  and  more  unable  to  liquidate 
even  the  annually  increasing  interest.  It  stood  in  the  relation  of 
a protector  to  the  principles  of  republican  liberty  on  which  the 
institutions  of  the  states  were  founded,  and  on  the  first  occurrence 
of  danger  it  stretched  forward  only  a palsied  arm,  to  which  no 
man  could  look  for  succor.^  It  undertook  to  rescue  commerce  from 
the  blighting  effects  of  foreign  policy,  and  failed  to  achieve  a 
single  conspicuous  and  important  advantage.)  Every  day  it  lost 
something  of  respect  abroad  and  of  confidence  at  home,  until  all 
men  saw,  with  Washington,  that  it  had  become  a great  shadow 
without  the  substance  of  a government ; while  few  could  even 
conjecture  what  was  to  rise  up  and  supplant  it. 

Few  men  could  see,  amid  the  decay  of  empire  and  the  absolute 
negation  of  all  the  vital  and  essential  functions  of  government, 
what  was  to  infuse  new  life  into  a system  so  nearly  effete.  Yet 
the  elements  of  strength  existed  in  the  character  of  the  people ; 
in  the  assimilation  which  might  be  produced,  in  the  lapse  of  years, 
by  a common  language,  a common  origin,  and  a common  destiny  ; 
in  the  almost  boundless  resources  of  the  country ; and,  above  all, 
in  the  principles  of  its  ancient  local  institutions,  that  were  capable, 
to  an  extent  not  then  conceived,  of  expansion  and  application  to 
objects  of  far  greater  magnitude  than  any  which  they  had  yet 
embraced.  Through  what  progress  of  opinion  the  people  of  this 
country  were  enabled  to  grasp  and  combine  these  elements  into  a 
new  svstem,  which  could  satisfy  their  wants,  we  must  now  inquire. 

In  this  inquiry  the  student  of  political  history  should  never  fail 
to  observe  that  the  great  difficulty  of  the  case,  which  made  it  so 
complex  and  embarrassing,  arose  from  the  separate,  sovereign, 


DECAY  OF  THE  CONFEDERATION. 


223 


and  independent  existence  of  tlie  states.  The  formation  of  new 
constitutions,  in  countries  not  thus  divided,  involves  only  the 
adaptation  of  new  institutions  and  forms  to  the  genius,  the  laws, 
and  the  habits  of  the  people.  The  monarchy  of  France  has,  in 
our  day,  been  first  remodelled,  and  afterwards  swept  from  the 
face  of  Europe,  to  bo  followed  by  a republican  constitution,  which 
has  in  its  turn  been  crushed  and  superseded,  and  again  an  empire 
has  been  succeeded  by  a republic.  But  France  is  a country  that 
has  long  been  subjected  to  as  complete  and  powerful  a system  of 
centralization  as  has  existed  anywhere  since  the  most  energetic  pe- 
riod of  the  Boman  empire ; and  whether  its  institutions  of  govern- 
ment have  or  have  not  needed  to  be  changed,  as  they  have  been 
from  time  to  time,  those  changes  have  been  made  in  a country  in 
which  an  entire  political  unity  has  greatly  facilitated  the  operation. 

In  the  United  States,  on  the  contrary,  a federal  government 
was  to  be  created ; and  it  was  to  be  created  for  thirteen  distinct 
communities — a government  that  should  not  destroy  the  political 
sovereignties  of  the  states,  and  should  yet  introduce  a new  sover- 
eignty, formed  by  means  of  powers  whose  surrender  by  the  states, 
instead  of  weakening  their  present  strength,  would  rather  develop 
and  increase  it.  This  peculiar  difficulty  may  be  constantly  traced, 
amid  all  the  embarrassments  of  the  period  in  which  the  funda- 
mental idea  of  the  Constitution  was  at  length  evolved. 

The  progress  of  opinion  and  feeling  in  this  country,  on  the 
subject  of  its  government,  from  the  peace  of  1783  to  the  year 
1787,  may  properly  be  introduced  by  a brief  statement  of  the  po- 
litical tendencies  of  two  principal  classes  of  men.  All  contempo- 
rary evidence  assures  us  that  this  was  a period  of  great  pecuniary 
distress,  arising  from  the  depreciation  of  the  vast  quantities  of 
paper  money  issued  by  the  federal  and  state  governments ; from 
rash  speculations ; from  the  uncertain  and  fluctuating  condition 
of  trade ; and  from  the  great  amount  of  foreign  goods  forced  into 
the  country  as  soon  as  its  ports  were  opened.  Naturally,  in  such 
a state  of  things,  the  debtors  were  disposed  to  lean  in  favor  of 
those  systems  of  government  and  legislation  which  would  tend 
to  relieve  or  postpone  the  payment  of  their  debts ; and  as  such 
relief  could  come  only  from  their  state  governments,  they  were 
naturally  the  friends  of  state  rights  and  state  authority,  and  were 
consequently  not  friendly  to  any  enlargement  of  the  powers  of 


CONSTITUTIONAL  HISTORY. 


224 

tlie  federal  Constitution.  The  same  causes  which  led  individuals 
to  look  to  legislation  for  irregular  relief  from  the  burden  of  their 
private  contracts,  led  them  also  to  regard  public  obligations  with 
similar  impatience.  Opposed  to  this  numerous  class  of  persons 
were  all  those  who  felt  the  high  necessity  of  preserving  inviolate 
every  public  and  private  obligation;  who  saw  that  the  separate 
power  of  the  states  could  not  accomplish  what  was  absolutely 
necessary  to  sustain  both  public  and  private  credit ; and  they  were 
as  naturally  disposed  to  look  to  the  resources  of  the  Union  for 
these  benefits  as  the  other  class  were  to  look  in  an  opposite  direc- 
tion. These  tendencies  produced,  in  nearly  every  state,  a strug- 
gle, not  as  between  two  organized  parties,  but  one  that  was  all 
along  a contest  for  supremacy  between  opposite  opinions,  in  which 
it  was  at  one  time  doubtful  to  which  side  the  scale  would  turn.* 

1 “The  war,  as  you  have  very  justly  observed,”  Washington  wrote  to  James 
Warren  of  Massachusetts,  in  October,  1785,  “ has  terminated  most  advantage- 
ously for  America,  and  a fair  field  is  presented  to  our  view;  but  I confess  to 
you,  my  dear  sir,  that  I do  not  think  we  possess  wisdom  or  justice  enough  to 
cultivate  it  properly.  Illiberality,  jealousy,  and  local  policy  mix  too  much  in  all 
our  public  counsels  for  the  good  government  of  the  Union.  In  a word,  the  Con- 
federation appears  to  me  to  be  little  more  than  a shadow  without  the  substance, 
and  Congress  a nugatory  body,  their  ordinances  being  little  attended  to.  To  me 
it  is  asorecism  in  politics;  indeed,  it  is  one  of  the  most  extraordinary  things  in 
nature,  that  we  should  confederate  as  a nation  and  yet  be  afraid  to  give  the 
rulers,  of  that  nation  (who  are  the  creatures  of  our  own  making,  appointed  for  a 
limited  and  short  duration,  and  who  are  amenable  for  every  action  and  may  be 
recalled  at  any  moment,  and  are  subject  to  all  the  evils  which  they  may  be  in- 
strumental in  producing)  sufficient  powers  to  order  and  direct  the  affiiirs  of  the 
same.  By  such  policy  as  this  the  wheels  of  government  are  clogged,  and  our 
brightest  prospects,  and  that  high  expectation  whicl^ was  entertained  of  us  by 
the  wondering  world,  are  turned  into  astonishment  ;//and,  from  the  high  ground 
on  which  we  Itood,  we  are  descending  into  the  vale  of  confusion  and  darkness. 

“ That  we  have  it  in  our  power  to  become  one  of  the  most  respectable  nations 
upon  earth,  admits,  in  my  humble  opinion,  of  no  doubt,  if  we  would  but  pursue  a 
wise,  just,  and  liberal  policy  towards  one  another,  and  keep  good  fixith  with  the 
rest  of  the  world.  That  our  resources  are  ample  and  increasing,  none  can  deny  ; 
but  while  they  are  grudgingly  applied,  or  not  applied  at  all,  we  give  a vital  stab 
to  public  fixith,  and  shall  sink,  in  the  eyes  of  Europe,  into  contempt. 

“It  has  long  been  a speculative  question  among  philosophers  and  wise  men, 
^Yhcther  foreign  commerce  is  of  real  advantage  to  any  country;  that  is,  whether 
the  luxury,  effeminacy,  and  corruptions  which  are  introduced  along  with  it  are 
counterbalanced  by  the  convenience  and  wealth  which  it  brings.  But  the  decis- 


ORIGIN  OF  TIIP]  CONVENTION. 


225 


The  three  most  important  centres  of  opinion  in  tlic  Union,  be- 
fore the  foi’ination  of  tlie  Constitution,  were  Massac! uisetts,  Vir- 
ginia, and  New  York.'  The  ])nblic  proceedings  of  each  of  them, 
in  the  order  of  time,  on  the  su])ject  of  enlarging  the  federal  powers, 
are,  therefore,  important  to  a just  understanding  of  the  course  of 
events  which  ended  in  the  calling  of  the  Convention. 

The  legislature  of  Massachusetts  was  assembled  in  the  summer 
of  1785.  The  ])roposal  of  Congress,  made  to  the  states  in  1784, 
to  grant  the  ])ower  of  regulating  trade,  had  been  responded  to  by 
only  four  of  the  states,  and  the  negotiations  in  Europe  were  fail- 
ing from  the  want  of  it.  Great  uneasiness  and  distress  pervaded 
all  the  commercial  classes,  and  extended  to  every  other  class  capa- 
ble of  being  affected  by  a state  of  things  in  which  a large  balance, 
occasioned  by  the  extravagant  importation  and  use  of  foreign 
manufactures,  was  thrown  against  the  country.  The  money  of 
the  state  was  rapidly  drawn  off  to  meet  this  balance,  which  its 
other  exhausted  means  of  remittance  could  not  satisfy.  It  was 
impossible  for  the  state  to  recover  its  former  prosperity  while 
Great  Britain  and  other  nations  continued  the  commercial  systems 
which  they  had  adopted.  It  had  become  plain  to  the  comprehen- 
sion of  all  intelligent  persons  concerned  in  trade  that  nothing 
could  break  up  those  systems  so  long  as  the  United  States  were 
destitute  of  the  same  power  to  regulate  their  foreign  tradp^by^'ad- 
mitting  or  excluding  foreign  vessels  and  cargoes  according  to 
their  interests ; and  it  needed  only  the  popular  expression  of  this 
palpable  truth,  enforced  by  a clear  and  decided  executive  message, 
to  induce  the  legislature  to  act  upon  it."*  Governor  Bowdoin  gave 


ion  of  this  question  is  of  veiy  little  importance  to  ns.  We  have  abundant  reason 
to  be  convinced  that  the  spirit  of  trade  which  pervades  these  states  is  not  to  be 
repressed.  It  behooves  us,  then,  to  establish  just  principles;  and  this  cannot, 
auy  more  than  other  matters  of  national  concern,  be  done  by  thirteen  heads 
diiferently  constructed  and  organized.  The  necessity,  therefore,  of  a controlling 
poAver  is  obvious ; and  why  it  should  be  withheld  is  beyond  my  comprehension.” 
Writings,  IX.  139-141. 

^ They  are  named  in  this  order,  because  it  represents  the  order  in  which  they 
respectively  acted  upon  the  enlargement  of  the  federal  powers. 

One  of  the  necessary  and  immediate  effects  of  the  Revolution,  of  course,  was 
the  loss  of  the  exclusive  commercial  advantages  which  this  country  had  enjoyed 
with  Great  Britain  and  her  dependencies;  and  the  prohibitory  acts  and  imposi- 

L— 15 


226 


CONSTITUTIONAL  HISTORY. 


the  necessary  impulse,  and  suggested  the  appointment  of  special 
delegates  from  the  states  to  settle  and  define  the  powers  with 
which  Congress  ought  to  be  invested.' 

This  message  caused  the  adoption  of  the  first  resolution  passed 
by  the  legislature  of  any  state  declaring  the  Articles  of  Confed- 
eration to  be  inadequate  to  the  great  purposes  which  they  were 
originally  designed  to  effect,  and  recommending  a convention  of 

tions,  which  fell  with  their  full  weight  on  the  American  trade,  after  the  peace, 
were  particularly  disastrous  to  the  trade  of  Massachusetts.  The  whale  fishery,  a 
business  of  great  importance,  had  brought  into  the  province,  before  the  war, 
172,000  guineas  per  annum,  giving  employment  to  American  seamen,  and  not 
requiring  the  use  of  any  foreign  materials,  except  a small  quantity  of  cordage. 
A duty  was  now  laid  on  whale  oil  in  England  of  £18  per  tun.  In  addition  to 
the  loss  thus  sustained,  the  exportation  of  lumber  and  provisions  in  American 
bottoms  to  tlie  West  Indies  was  entirely  prohibited.  Another  great  inconven- 
ience, which  came  in  fact  to  be  intolerable,  was  the  vast  infiux  of  British  goods, 
consigned  to  English  factors  for  sale,  depriving  the  native  merchants,  manu- 
fiicturers,  and  artisans  of  the  market.  At  the  same  time  the  revenue  of  the  state, 
derived  from  impost  and  excise  duties  and  a tax  on  auctions  of  one  per  cent., 
fell  short  of  the  annual  interest  on  the  private  debt  of  the  state  £30,000 
(currency)  per  annum,  and  a tax  of  £20,000  (currency)  was  computed  to  be 
necessary  to  cancel  the  debt,  principal  and  interest,  in  fifteen  years,  and  pay  the 
ordinary  charges  of  the  government.  Besides  this,  the  state’s  proportion  of  the 
federal  debt  was  to  be  provided  for.  It  was  in  this  state  of  things  that  two 
remarkable  popular  meetings  were  held  in  Boston,  in  the  spring  of  1785,  to  act 
upon  the  subject  of  trade  and  navigation,  and  to  call  tlie  attention  of  Congress  to 
the  necessity  for  a national  regulation  of  commerce.  The  first  was  a meeting  of 
the  merchants  and  tradesmen,  convened  at  Faneuil  Hall  on  the  18th  of  April. 
They  appointed  a committee  to  draft  a petition  to  Congress,  representing  the  em- 
barrassments under  which  the  trade  was  laboring,  and  took  measures  to  cause 
the  legislature  to  call  the  attention  of  the  delegation  in  Congress  to  the  impor- 
tance of  immediate  action  upon  the  subject.  They  also  established  a committee 
of  correspondence  with  the  merchants  in  the  other  seaports  of  the  United  States, 
to  induce  a similar  action;  and  they  entered  into  a pledge  not  to  purchase  any 
o-oods  of  the  British  merchants  and  factors  residing  in  Boston,  who  had  made 
very  heavy  importations,  which  tended  to  drain  the  specie  of  the  state.  The 
other  meeting  was  an  assembly  of  the  artisans  and  mechanics,  held  at  the  Green 
Dragon  Tavern,  on  the  28th  of  April,  at  which  similar  resolutions  were  adopted. 
It  is  quite  apparent,  from  these  proceedings,  that  all  branches  of  industry  were 
threatened  with  ruin ; and  in  the  efforts  to  counteract  the  effects  of  the  great 
influx  of  foreign  commodities,  we  trace  the  first  movements  of  a popular  nature 
towards  a national  control  over  commerce. 

' Governor  Bowdoin’s  first  Message  to  the  Legislature,  May  31, 1785. 


ORIGIN  OF  THE  CONVENTION. 


227 


delegates  from  all  the  states,  for  the  purpose  of  revising  tlicm, 
ami  reporting  to  Congress  how  far  it  might  be  necessary  to  alter 
or  enlarge  the  powers  of  the  Federal  Union,  in  order  to  secure 
and  })crpetuate  its  primary  objects.  Congress  Avas  requested  by 
these  resolves  to  recommend  such  a convention.  A letter,  urging 
the  importance  of  the  subject,  was  addressed  by  the  governor  of 
IMassaclmsetts  to  the  president  of  Congress,  and  another  to  the 
executive  of  each  of  the  other  states.  The  resolves  were  also 
• enclosed  to  the  delegates  of  the  state  in  Congress,  with  instructions 
to  lay  them  before  that  body  at  the  earliest  opportunity,  and  to 
make  every  exertion  to  carry  them  into  effect.* 

They  Avere,  however,  ne\^er  presented  to  Congress.  That  body 
Avas  Avholly  unprepared  for  such  a step,  and  the  delegation  of 
Massachusetts  were  entirely  opposed  to  it,  as  premature.  It  had 
been  all  along  the  policy  of  Congress  to  obtain  only  a grant  of 
temporary  poAver  over  commerce,  and  to  this  policy  they  Avere 
committed  by  their  proposition,  now  pending  AAuth  the  legislatures 
of  the  states,  and  by  the  instructions  of  the  commissioners  Avhom 
they  had  sent  to  Europe  to  negotiate  commercial  treaties.  The 
preA^alent  idea  in  Congress  Avas,  that  at  the  expiration  of  fifteen 
years — the  period  for  Avhich  they  had  asked  the  states  to  grant 
them  poAver  over  commerce  — a neAV  commercial  epoch  would 
commence,  Avhen  the  states  would  have  a more  clear  and  compre- 
hensive vieAv  of  their  interests,  and  of  the  best  means  for  promot- 
ing them,  whether  by  treaties  abroad,  or  by  the  delegation  and 
exercise  of  greater  power  at  home.  It  Avas  argued,  also,  that  the 
most  safe  and  practicable  course  was,  to  grant  temporary  poAver 
in  the  first  instance,  and  to  leave  the  question  of  its  permanent 
adoption  as  a part  of  the  Confederation  to  depend  on  its  beneficial 
effects.  Another  objection,  Avhich  afterAvards  caused  serious  diffi- 
culty, Avas  that  the  Articles  of  Confederation  contained  no  pro- 
vision  for  their  amendment  by  a convention,  but  that  changes 
should  originate  in  Congress  and  be  confirmed  by  the  state  legis- 
latures, and  that,  if  the  report  of  a convention  should  not  be 
adopted  by  Congress,  great  mischiefs  Avould  folio av. 

But  a deep-seated  jealousy  in  Congress  of  the  radical  changes 
likely  to  be  made  in  the  system  of  government  lay  at  the  founda- 


July  1, 1785. 


228 


CONSTITUTIONAL  HISTORY. 


tion  of  these  objections.  There  was  an  apprehension  that  the 
Convention  might  be  composed  of  persons  favorable  to  an  aristo- 
cratic system ; or  that,  even  if  the  members  Avere  altogether  re- 
publican in  their  views,  there  Avould  be  great  danger  of  a report 
Avhich  would  propose  an  entire  remodelling  of  the  government. 
The  delegation  from  Massachusetts,  influenced  by  these  fears,  re- 
tained the  resolutions  of  the  state  for  two  months,  and  then  replied 
to  the  governor’s  letter,  assigning  these  as  their  reasons  for  not 
complying  Avith  the  directions  given  to  them.'  The  legislature  of 
Massachusetts  thereupon  annulled  their  resolutions  recommending 
a Convention." 

It  is  manifest  from  this  occurrence  that  Congress  in  1785  were 
no  more  in  a condition  to  take  the  lead  and  conduct  the  country 
to  a revision  of  the  Federal  Constitution  than  they  Avere  in  1783, 
Avhen  Hamilton  Avished  to  have  a declaration  made  of  its  defects, 
and  found  it  impracticable.  There  Avere  seldom  present  more  than 
five-and-tAventy  members ; and  at  the  time  Avhen  Massachusetts 
proposed  to  call  upon  tliem  to  act  upon  this  momentous  subject 
the  Avhole  assembly  embraced  as  little  eminent  talent  as  had  ever 
appeared  in  it.  They  Avere  not  Avell  placed  to  observe  that  some- 
thing more  than  “ the  declamation  of  designing  men”  Avas  at  work, 
loosening  the  foundations  of  the  system  Avhich  they  Avere  adminis- 
tering." They  saAv  some  of  its  present  inconveniences ; but  they  did 
not  see  hoAV  rapidly  it  AAms  losing  the  confidence  of  the  country,  of 
Avhich  the  folloAving  year  Avas  destined  to  deprive  it  altogether. 

Before  the  year  1785  had  closed,  hoAvever,  Virginia  Avas  pre- 

^ The  delegation  at  that  time  consisted  of  Elbridge  Gerry,  Samuel  Holten, 
and  Rufus  King.  Their  “ Reasons  assigned  for  suspending  the  delivery  to 
Congress  of  the  governor’s  letter  for  revising  and  altering  the  Confederation” 
may  be  found  in  the  Life  of  Hamilton,  II.  353.  See  also  Boston  Magazine  for 
1785,  p.  475. 

" November  25,  1785. 

^ Letter  of  iVIessrs.  Geny,  Holten,  and  King,  delegates  in  Congress,  to  the 
governor  of  Massachusetts,  assigning  reasons  for  suspending  the  delivery  of  liis 
letter  to  Congress,  dated  September  3,  1785.  Life  of  Hamilton,  II.  353,  357. 

AVe  are  apprehensive,”  said  they,  “ and  it  is  our  duty  to  declare  it,  that  such  a 
measure  -vvould  produce  throughout  the  Union  an  exertion  of  the  friends  of  an 
aristocracy  to  send  members  who  would  promote  a change  of  government ; and 
we  can  form  some  judgment  of  the  plan  which  such  members  would  report  to 
Congress.  But  should  the  members  be  altogether  republican,  swcA  have  heeii  the 


ORIGIN  OF  THE  CONVENTION. 


220 


paring  to  give  the  weight  of  lier  influence  to  the  advancing  cause 
of  refonn. 

A ])roposition  was  introduced  into  the  House  of  Delegates  of 
Virginia  to  instruct  the  delegates  of  the  state  in  Congress  to  move 
a recommendation  to  all  the  states  to  authorize  Congress  to  col- 
lect a revenue  by  means  of  duties  uniform  througliout  the  United 
States,  for  a period  of  thirteen  years.'  The  absolute  necessity  for 
such  a system  was  generally  admitted ; but,  as  in  Massachusetts, 
the  opinions  of  the  members  were  divided  between  a permanent 
grant  of  power  and  a grant  for  a limited  term.  The  advocates  of 
the  limitation,  arguing  that  the  utility  of  the  measure  ought  to  be 
tested  by  experiment,  contended  that  a temporary  grant  of  com- 
mercial powers  might  be  and  would  be  renewed  from  time  to  time, 
if  experience  should  prove  its  efficacy.  They  forgot  that  the  other 
powers  granted  to  the  Union,  on  which  its  whole  fabric  rested, 
were  perpetual  and  irrevocable;  and  that  the  first  sacrifices  of 
sovereignty  made  by  the  states  had  been  the  result  of  circum- 
stances which  ini|)eratively  demanded  the  surrender,  just  as  the 
situation  of  the  country  now  demanded  a similar  surrender  of 
an  irrevocable  power  over  commerce.  The  proposal  to  make 
this  grant  temporary  only  was  a proposal  to  engraft  an  anomaly 
upon  the  other  powers  of  the  Confederacy,  with  very,  little 
prospect  of  its  future  renewal ; for  the  caprice,  the  jealousy,  and 
the  diversity  of  interests  of  the  different  states  were  obstacles 
which  the  scheme  of  a temporary  grant  could  only  evade  for  the 
present,  leaving  them  still  in  existence  when  the  period  of  the 
grant  should  expire.  But  the  arguments  in  favor  of  this  scheme 
prevailed,  and  the  friends  of  the  more  enlarged  and  liberal  system, 
believing  that  a temporary  measure  would  stand  afterwards  in  the 
wa}^  of  a permanent  one,  and  would  confirm  the  policy  of  other 
countries  founded  on  the  jealousies  of  the  states,  were  glad  to 

declamatio7is  of  designing  men  against  the  Confedei-ation  generally,  against  the 
rotation  of  members,  which,  perhaps,  is  the  best  check  to  corruption,  and  against 
the  mode  of  altering  the  Confederation  by  the  unanimous  consent  of  the  legis- 
latures, which  effectually  prevents  innovations  in  the  articles  by  intrigue  or  sur- 
prise, that  we  think  there  is  great  danger  of  a report  which  would  invest  Con- 
gress with  powers  that  the  honorable  legislature  liave  not  the  most  distant  inten- 
tion to  delegate,” 

1 November  30th,  1785. 


230 


CONSTITUTIONAL  HISTORY. 


allow  the  subject  to  subside,  until  a new  event  opened  the  pros- 
pect for  a more  efficient  plan.' 

The  citizens  of  Virginia  and  Maryland,  directly  interested  in 
the  navigation  of  the  rivers  Potomac  and  Pocomoke  and  of  the 
bay  of  Chesa])eake,  had  long  been  embarrassed  by  the  conflicting 
rights  and  regulations  of  their  respective  states,  and  in  the  spring 
of  1785  an  effort  at  accommodation  was  made,  by  the  appoint- 
ment of  commissioners  on  the  part  of  each  state  to  form  a compact 
bet\reen  them  for  the  regulation  of  the  trade  upon  those  w^aters. 
These  commissioners  assembled  at  Alexandria  in  March,  and 
while  there  made  a visit  at  Mount  Vernon,  where  a further  scheme 
was  concerted  for  the  establishment  of  harmonious  commercial 
regulations  between  the  two  states."  This  plan  contemplated  the 
appointment  of  other  commissioners,  having  power  to  make 
arrangements,  with  the  assent  of  Congress,  for  maintaining  a 
naval  force  in  the  Chesapeake,  and  also  for  establishing  a tariff  of 
duties  on  imports,  to  be  enacted  by  the  legislatures  of  both  states. 
A report  embracing  this  recommendation  was  accordingly  made 
by  the  Alexandria  commissioners  to  their  respective  governments. 
In  the  legislature  of  Virginia  this  report  was  received  wdiile  the 

' The  resolution  introduced  on  the  30tli  of  November  was  agreed  to  in  tlie 
Delegates,  but  before  it  was  carried  up  to  the  Senate  it  was  reconsidered  and 
laid  upon  the  table.  Elliot’s  Debates,  I,  114,  115.  Letter  of  Mr.  Madison  to 
Washington,  of  December  9,  1785,  Washington’s  Works,  IX.  508. 

2 What  direct  agency  Wasliington  liad  in  suggesting  or  promoting  this 
scheme  does  not  appear,  although  it  seems  to  liave  originated,  or  to  have  been 
agreed  upon,  at  his  liouse.  His  published  correspondence  contains  no  mention 
of  the  visit  of  the  commissioners,  but  Chief-Justice  Marshall  states  that  such  a 
visit  was  made,  and  in  this  statement  he  is  followed  by  Mr.  Sparks  (Marshall, 
V.  90  ; Sparks,  I.  428).  Mr.  Madison,  writing  to  Washington  in  December,  1785, 
refers  to  “the  proposed  appointment  of  commissioners  for  Virginia  and  Mary- 
land, concerted  at  Mount  Vernon^  for  keeping  up  harmony  in  the  commercial  reg- 
ulations of  the  two  states,”  and  says  that  the  meeting  of  commissioners  from  all 
the  states,  which  had  then  been  proposed,  “seems  naturally  to  grow  out  of  it.” 
Washington’s  Writings,  IX.  509. 

That  Washington  foresaw  that  the  plan  agreed  upon  at  his  house  in  March 
would  lead  to  a general  assembly  of  representatives  of  all  the  states  seems  alto- 
gether probable,  from  the  opinions  which  he  entertained  and  expressed  to  his 
correspondents,  during  that  summer,  upon  the  subject  of  conferring  adequate 
commercial  powers  upon  Congress.  See  his  Letters  to  Mr.  McHenry  and  Mr. 
Madison  of  August  22d  and  November  30th.  Writings,  IX.  121,  145. 


ORIGIN  OF  THE  CONVENTION. 


231 


proposition  for  granting  temporary  commercial  ])o\vcrs  to  Con- 
gress was  under  consideration  ; and  it  was  immediately  followed 
by  a 1‘esolution  directing  that  part  of  the  ])lan  which  respected 
duties  on  imports  to  be  communicated  to  all  the  states,  with  an 
invitation  to  send  deputies  to  the  meeting.  In  a few  days  after- 
wards the  celebrated  resolution  of  Virginia,  which  led  the  way  to 
the  convention  at  Annapolis,  was  adopted  by  the  legislature,  di- 
recting the  appointment  of  commissioners  to  meet  with  the  depu- 
ties of  all  the  other  states  wdio  might  be  appointed  for  the  same 
purpose,  to  consider  the  . w-hole  subject  of  the  commerce  of  the 
United  States:" — Tlie  circular  letter  which  transmitted  this  reso- 
lutTon  to  the  several  states  proposed  that  Annapolis,  in  the  state 
of  Maryland,  should  be  the  place,  and  that  the  following  Septem- 
ber should  be  the  time  of  meeting. 

The  fate  of  this  measure  now  turned  principally  upon  the  ac- 
tion of  the  state  of-Alew-York.  The  power  of  levying  a national 
impost,  proposed  in  the  revenue  system  of  1783,  had  been  steadily 
■withheld  from  Congress  by  the  legislature  of  that  state.  Ever 
since  the  peace  the  state  had  been  divided  between  two  parties — 
the  friends  of  adequate  powers  in  Congress,  and  the  adherents  of 
state  sovereignty;  and  the  belief  that  the  commercial  advantage 
of  the  state  depended  upon  retaining  the  power  to  collect  their 
own  revenues  had  all  along  given  to  the  latter  an  ascendency  in 
the  legislature.  In  1784  they  established  a custom-house  and  a 
revenue  system  of  their  own.  In  1785  a proposition  to  grant  the 

^ Tibs  resolution,  passed  January  21,1786,  was  m these  words:  '•''Resolved, 
That  Edmund  Randolph,  James  Madison,  Jr.,  Walter  Jones,  St.  George  Tucker, 
Meriweather  Smith,  David  Ross,  William  Ronald,  and  George  Mason,  Esquires, 
he  appointed  commissioners,  who,  or  any  five  of  whom,  shall  meet  such  com- 
missioners as  may  be  appointed  by  the  other  states  in  the  Union,  at  a time 
and  place  to  be  agreed  on,  to  take  into  consideration  the  trade  of  the  United 
States;  to  examine  the  relative  situation  and  trade  of  the  said  states;  to  con- 
sider how  far  a uniform  system  in  their  commercial  regulations  may  be  necessary 
to  their  common  interest  and  their  permanent  harmony;  and  to  report  to  the 
several  states  such  an  act  relative  to  this  great  object  as,  when  unanimously  rati- 
fied by  them,  will  enable  the  United  States  in  Congress  assembled  effectually  to 
provide  for  the  same  ; that  the  said  commissioners  shall  immediately  transmit 
to  the  several  states  copies  of  the  preceding  resolution,  with  a circular  letter  re- 
specting their  concurrence  therein,  and  proposing  a time  and  place  for  the  meet- 
ing aforesaid.” 


232 


CONSTITUTIONAL  HISTORY. 


.) 


required  powers  to  Congress  was  lost  in  the  senate,  and  in  1780 
it  became  necessary  for  Congress  to  bring  this  question  to  a final 
issue.  Three  other  states,  as  we  have  seen,  stood  in  the  same 
category  with  New  York,  having  decided  in  favor  of  no  part  of 
the  plan  which  Congress  had  so  long  and  so  repeatedly  urged 
upon  their  adoption.*^  Declaring,  therefore,  that  the  crisis  had 
arrived  when  the  people  of  the  United  States,  by  whose  will  and 
for  whose  benefit  the  federal  government  was  instituted,  must  de- 
cide whether  they  would  support  their  work  as  a nation  by  main- 
taining the  public  faith  at  home  and  abroad,  or  whether,  for  want 
of  a timely  exertion  in  establishing  a general  revenue  system,  and 
thereby  giving  strength  to  the  Confederacy,  they  would  hazard 
the  existence  of  the  Union  and  the  privileges  for  which  they  had 
contended — Congress  left  the  responsibility  of  the  decision  with 
the  legislatures  of  ^ the  states."* 

It  was  how  Uiat  the  influence  of  Hamilton  upon  the  destinies 
of  this  country  began  to  be  favored  by  the  events  which  had 
brought  its  affairs  to  the  present  juncture.  To  his  sagacious  and 


* Rliode  Island,  Maryland,  and  Georgia. 

^ ^ “The  committee,”  said  the  Report,  “ have  thought  it  their  duty  candidly 

to  examine  the  principles  of  this  system,  and  to  discover,  if  possible,  the  reasons 
■which  have  prevented  its  adoption  ; they  cannot  learn  that  any  member  of  the 
Confederacy  has  stated  or  brought  forward  any  objections  against  it,  and  the  re- 
sult of  their  impartial  inquiries  into  the  nature  and  operation  of  tlie  plan  has 
been  a clear  and  decided  opinion  that  the  system  itself  is  more  free  from  well- 
founded  exceptions,  and  is  better  calculated  to  receive  the  approbation  of  the 
several  states,  than  any  other  that  the  wisdom  of  Congress  can  devise.  In  the 
course  of  this  inquiry  it  most  clearly  appeared  that  the  requisitions  of  Congress 
for  eight  years  past  have  been  so  irregular  in  their  operation,  so  uncertain  in 
their  collection,  and  so  evidently  unproductive,  that  a reliance  on  them  in  future 
as  a source  from  whence  moneys  are  to  be  drawn  to  discharge  the  engagements 
of  the  Confederacy,  definite  as  they  are  in  time  and  amount,  would  be  not  less 
dishonorable  to  the  understandings  of  those  who  entertain  such  confidence,  tlian 
it  would  be  dangerous  to  the  welfare  and  peace  of  the  Union.  The  committee 
are,  therefore,  seriously  impressed  with  the  indispensable  obligation  that  Con- 
gress are  under  of  representing  to  the  immediate  and  impartial  consideration 
of  the  several  states  the  utter  impossibility  of  maintaining  and  preserving  the 
faith  of  the  federal  government  by  temporary  requisitions  on  the  states,  and  the 
consequent  necessity  of  an  early  and  complete  accession  of  all  the  states  to  the 
revenue  system  of  the  18th  of  April,  1783.”  Journals  of  Congress,  XI.  35,  3G. 
February  15, 178G. 


ORIGIN  OF  THE  CONVENTION. 


233 


watchful  forecast  the  proposal  of  a commercial  convention,  ema- 
nating from  Virginia,  presented  the  opportunity  which  he  liad 
long  desired  to  effect  an  entire  change  in  tlie  system  of  the  fed- 
eral government ; while,  at  the  same  time,  the  final  appeal  made 
by  Congress  for  the  establishment  of  the  revenue  system  gave  him 
an  occasion  to  bring  the  state  of  New  York  into  the  movement 
which  had  been  originated  by  Virginia.  He  determined  that  this 
system  should  be  again  presented  to  the  legislature  for  distinct 
approval  or  rejection,  and  that,  if  it  should  be  rejected,  the  state 
should  still  send  a representation  to  the  Convention  at  Annapolis. 
He,  therefore,  caused  the  revenue  system,  as  proposed  by  Con- 
gress, to  be  again  brought  before  the  legislature,  where  it  was 
again  rejected ; and  he  and  his  friends  then  threw  their  whole  in- 
fiuence  in  favor  of  the  appointment  of  commissioners  to  attend 
the  commercial  convention,  and  succeeded,  Hamilton  himself  being 
appointed  one  of  them.*  ^ 

This  great  step  having  been  taken,  the  course  of  the  state  of 
New  York  upon  the  revenue  system  of  1783,. which  brought  her 
at  length  to  an  open  controversy  with  Congress,  tended  strongly 
to  aid  the  plans  of  Hamilton,  and  finally  gave  him  the  ascendency 
in  the  state  itself.  The  legislature,  in  May,  1786,  passed  an  act  ^ 
for  granting  imposts  and  duties  to  the  United  States,  and  soon 
afterwards  adjourned.  It  was  immediately  pronounced  by  Con- 
gress not  to  be  a compliance  with  their  recommendation,  and  the 
governor  was  earnestly  requested  to  reassemble  the  legislature. 
This  he  declined  to  do,  upon  the  ground  of  a want  of  constitu- 
tional power.  Congress  again  urged  the  summoning  of  the  legis- 
lature, for  the  purpose  of  granting  the  system  of  impost  in  such  a 
manner  as  to  enable  them  to  carry  it  into  effect,  and  the  governor 
again  refused.^ 


1 Life  of  Hamilton,  II.  374,  375. 

^ The  legislature  of  New  York  were  willing  to  grant  the  duties  to  Congress, 
but  insisted  upon  reserving  the  power  of  levying  and  collecting  them ; and,  in- 
stead of  making  the  collectors  amenable  to  and  removable  by  Congress,  they 
made  them  removable  by  the  state,  on  conviction  for  default  or  neglect  of  duty, 
in  the  state  courts.  This  was  a material  departure  from  the  plan  recommended 
by  Congress,  and  was  entirely  inconsistent  with  the  grants  already  made  by 
several  of  the  states.  See  the  Report  and  proceedings  in  Congress  on  the  New 
York  Act,  July  27-August  23,  1786.  Journals,  XI.  153,  184,  197,  200. 


234 


CONSTITUTIONAL  HISTORY. 


Arrived  at  Annapolis,  Hamilton  found  there  the  representa- 
tives of  five  states  only.'  He  had  come  with  the  determination 
that  the  Convention  should  lay  before  the  country  the  whole  sub- 
ject of  the  condition  of  the  states  and  the  want  of  an  efficient  fed- 
eral government.  But  the  avowed  purpose  of  the  meeting  was 
solely  to  consider  the  means  of  establishing  a uniform  system  of 
commercial  regulations,  and  not  to  reform  the  existing  govern- 
ment of  the  Union.  Hew  Jersey  alone,  of  the  five  states  repre- 
sented, had  empowered  her  commissioners  to  consider  of  “ other 
important  matters,”  iji  addjtion  to  the  subject  of  commercial  reg- 
ulations. Four  oth^  states  had  appointed  commissioners,  none 
of  whom  had  attended,  and  th-e  four  remaining  states  had  made 
no  appointment  at  all.' 

Under  these  circumstances  it  was  certainly  a matter  of  great 
delicacy  for  the  commissioners  of  five  states  only  to  pass  upon 
the  general  situation  of  the  Union,  and  to  pronounce  its  existing 
government  defective  and  insufficient.  Hamilton,  however,  felt 
that  this  opportunity,  once  lost,  might  never  occur  again;  and, 
although  willing  to  waive  his  original  purpose  of  a full  exposition 
of  the  defects  of  the  Confederation,  he  did  not  deem  it  expedient 
that  the  convention  should  adjourn  without  proposing  to  the 
country  some  measure  that  would  lead  to  the  necessary  reforms. 
He  modified  his  original  plan,  therefore,  and  laid  before  his  col- 
leagues a report  which  formally  proposed  to  the  several  states  the 
assembling  of  a general  convention,  to  take  into  consideration  the 
situation  of  the  United  States. 

’ NewVork  was  represented  by  Alexander  Hamilton  and  Egbert  Benson; 
ilew  Jersey  by  Abraham  Clark,  William  C.  Houston,  and  James  Schureman  ; 
'^Pennsylvania  by  TenpiFCoxe;  Delalfere  by  George  Read,  John  Dickinson,  and 
Richard  Bassett;  Virginia  by  Edmund  Randolph  (Governor),  James  Madison, 
Jr.,  and  St.  George  Tucker. 

' General  Knox,  writing  to  Washington,  under  date  of  January  14th,  1787, 
savs:  “You  ask  what  prevented  the  Eastern  States  from  attending  the  Septem- 
ber meeting  at  Annapolis.  It  is  difficult  to  give  a precise  answer  to  this  ques- 
tion. Perhaps  to^idity  in  New  iFtSnpshire,  fiction  and  heats  ffiiout  their  paper 
money  in  Rhode  ^and,  and  jealousy  in  Connecticut.  Massachusetts  had  chosen 
delegates  to  attend,  who  did  not  decline  until  very  late,  and  the  finding  of  other 
persons  to  supply  their  places  was  attended  with  delay,  so  that  the  convention 
had  broken  up  by  the  time  the  new-chosen  delegates  had  reached  Philadel- 
phia.” Whitings  of  AYashington,  IX.  513. 


THE  CONFEDERATION. 


235 


In  tliis  document  it  was  declared  that  tlie  regulation  of  trade, 
which  had  been  made  the  object  of  the  meeting  at  Annapolis, 
could  not  be  elFected  alone,  for  the  power  of  regulating  commerce 
would  enter  so  far  into  the  general  system  of  the  federal  govern- 
ment that  it  would  require  a corresponding  adjustment  of  the 
otlier  parts  of  the  system./  That  the  system  of  the  general  gov- 
ernment was  seriously  defective ; that  those  defects  were  likely 
to  be  found  greater  on  a close  inspection  ; that  they  were  the 
cause  of  the  embarrassments  which  marked  the  state  of  public  af- 
fairs, foreign  and  domestic  ; and  that  some  mode  by  which  they 
could  be  peaceably  supplied  was  imperatively  demanded  by  the 
public  necessities,  were  propositions  which  the  country  was  then 
prepared  to  receive.  A convention  of  deputies  from  the  different 
states,  for  the  special  and  sole  purpose  of  investigating  the  defects 
of  the  national  government,  seemed  to  be  the  course  entitled  to 
preference  over  all  others.' 

It  was  indeed  the  only  method  by  which  the  object  of  the 
great  statesman  who  drafted  this  report  could  have  been  reached. 
The  Articles  of  Confederation  had  provided  that  they  should  be 
inviolably  observed  by  every  state;  that  the  Union  should  be 
perpetual ; and  that  no  alteration  should  be  made  in  any  of  the 
Articles,  unless  agreed  to  in  a Congress  of  the  United  States,  and 
confirmed  by  the  legislature  of  every  state.^  To  have  left  the 
whole  subject  to  the  action  of  Congress  would  have  insured,  at 
most,  only  a change  in  some  of  the  features  of  the  existing  govern- 
ment, instead  of  the  great  reform  which  Hamilton  believed  to  be 
essential — the  substitution  of  a totally  different  system.  At  the 
same  time  the  co-operation  and  assent  of  Congress  were  necessary 
to  the  success  of  the  plan  of  a convention,  in  order  that  it  might 
not  seem  to  be  a violent  departure  from  the  provisions  of  the 
Articles  of  Confederation,  and  also  for  the  sake  of  their  influence 
with  the  states.  The  proposal  of  the  report  was  therefore  cautious. 
It  did  not  suggest  the  summoning  of  a convention  to  frame  a new 
constitution  of  government,  but  “ to  devise  such  further  provisions 
as  might  appear  to  be  necessary  to  render  the  constitution  of  the 
federal  government  adequate  to  the  exigencies  of  the  Union.”  It 

^ Report  of  tlie  Annapolis  Convention,  Elliot’s  Debates,  I.  116;  Hamilton’s 
Works,  II.  336.  2 Article  XIII. 


236 


CONSTITUTIONAL  HISTORY. 


})roposed,  also,  that  whatever  reform  should  be  agreed  on  by  the 
Convention  should  be  reported  to  Congress,  and,  when  agreed  to 
by  them,  should  be  confirmed  by  the  legislatures  of  all  the  states. 
In  this  manner  the  proposal  avoided  any  seeming  violence  to  the 
Articles  of  Confederation,  and  suggested  the  Convention  as  a body 
to  prepare  for  the  use  of  Congress  a plan  to  be  adopted  by  them 
for  submission  to  the  states.' 

At  the  same  time  Hamilton  undoubtedly  contemplated  more 
than  any  amendment  of  the  existing  Constitution.  In  1780  he 
had  analyzed  the  defects  of  the  general  government,  sketched  the 
outline  of  a Federal  Constitution,  and  suggested  the  calling  of  a 
convention  to  frame  such  a system.^  The  idea  of  such  a conven- 
tion was  undoubtedly  entertained,  by  many  persons,  before  the 
meeting  at  Annapolis.  It  had  been  recommended  by  the  legisla- 
ture of  Hew  York  in  1782,  and  by  that  of  Massachusetts  in  1785. 
But  Hamilton  had  foreseen  its  necessity  in  1780,  more  than  seven 
years  before  the  meeting  at  Annapolis  ; and,  although  he  may  not 
have  been  the  author  of  the  first  public  proposal  of  such  a meas- 
ure, his  private  correspondence  contains  the  first  suggestion  of  it, 
and  proves  that  he  had  conceived  the  main  features  of  the  Consti- 
tution of  the  United  States,  even  before  the  Confederation  itself 
was  established." 

’ Report,  lit  supra. 

2 See  his  letter  to  James  Duane,  written  in  1780,  Life,  I.  284-305. 

^ Ib'id.  The  first  public  proposal  of  a continental  convention  is  assigned  by 
Mr.  Madison  to  one  Pelatiah  Webster,  whom  he  calls  “an  able,  though  not  con- 
spicuous citizen,”  and  who  made  this  suggestion  in  a pamphlet  published  in 
May,  1781.  Recent  researches  have  not  added  to  our  knowledge  of  this  writer. 
In  the  summer  of  1782  the  legislature  of  New  York,  under  the  suggestion  of 
Hamilton,  passed  resolutions  recommending  such  a convention.  On  the  1st  of 
April,  1783,  Hamilton,  in  a debate  in  Congress,  expressed  his  desire  to  see  a gen- 
eral convention  take  place.  In  1784  the  measure  was  a good  deal  talked  of 
among  the  members  of  Congress,  and  in  the  winter  of  1784-85,  Noah  Webster, 
an  eminent  political  writer  in  Connecticut,  suggested  “ a new  system  of  govern- 
ment, which  should  act,  not  on  the  states,  but  directly  on  individuals,  and  vest 
in  Congress  full  power  to  carry  its  laws  into  etfect.”  In  1786  the  subject  was 
again  talked  of  among  members  of  Congress,  before  the  meeting  at  An-napolis. 
(Madison.  Elliot,  V.  117,  118.)  But  Hamilton’s  letter  to  James  Duane,  in  1780, 
although  not  published  at  the  time,  was  of  course  earlier  than  any  of  these  sug- 
gestions. In  that  letter,  after  showing  that  the  fundamental  defect  of  the  then 
existing  system  was  a want  of  power  in  Congress,  he  thus  analyzes  in  advance 


THE  CONFEDERATION. 


237 


The  recommendation  of  the  Anna])olis  commissioners  was  vari- 
ously received.  In  the  legislature  of  Virginia  it  met  with  a cor- 
tlial  approval,  and  an  act  was  passed  during  the  autumn  to  provide 


the  Articles  of  Confederation,  ^Yllich  liad  not  tlien  taken  effect:  “But  the  Con- 
federation itself  is  defective,  and  requires  to  be  altered.  It  is  neither  fit  for  w^ar 
nor  peace.  The  idea  of  an  uncontrollable  sovereignty,  in  each  state,  over  its 
internal  police,  will  defeat  the  other  powers  given  to  Congress,  and  make  our 
Union  feeble  and  precarious.  There  are  instances  without  number  where  acts 
necessary  for  the  general  good,  and  which  rise  out  of  the  powers  given  to  Con- 
gress, must  interfere  with  the  internal  police  of  the  states;  and  there  are  as 
many  instances  in  which  the  particular  states,  by  arrangements  of  internal  police, 
can  effectually,  though  indirectly,  counteract  the  arrangements  of  Congress. 
You  have  already  had  examples  of  this,  for  which  I refer  to  your  own  memory. 
The  Confederation  gives  the  states,  individually,  too  much  influence  in  the  affairs 
of  the  army;  they  should  have  nothing  to  do  with  it.  The  entire  foundation 
and  disposal  of  our  military  forces  ought  to  belong  to  Congress.  It  is  an  essen- 
tial element  of  the  Union  ; and  it  ought  to  be  the  policy  of  Congress  to  destroy 
all  ideas  of  state  attachment  in  the  army,  and  make  it  look  up  wholly  to  them. 
For  this  purpose  all  appointments,  promotions,  and  provisions  whatsoever  ought 
to  be  made  by  them.  It  may  be  apprehended  that  this  may  be  dangerous  to 
liberty.  But  nothing  appears  more  evident  to  me  than  that  we  run  much 
greater  risk  of  having  a weak  and  disunited  federal  government,  than  one  which 
will  be  able  to  usurp  upon  the  rights  of  the  people.  Already  some  of  the  lines 
of  the  army  would  obey  their  states  in  opposition  to  Congress,  notwithstanding 
the  pains  w^e  have  taken  to  preserve  the  unity  of  the  army.  If  anything  would 
hinder  this,  it  would  be  the  personal  influence  of  the  general — a melancholy 
and  mortifying  consideration.  The  forms  of  our  state  constitutions  must  always 
give  them  great  weight  in  our  affairs,  and  will  make  it  too  difflcult  to  blind 
them  to  the  pursuit  of  a common  interest,  too  easy  to  oppose  what  they  do  not 
like,  and  to  form  partial  combinations  subversive  of  the  general  one.  There  is 
a wide  difference  between  our  situation  and  that  of  an  empire  under  one  simple 
form  of  government,  distributed  into  counties,  provinces,  or  districts  wdiicli  have 
no  legislatures,  but  merely  magistratical  bodies  to  execute  the  laws  of  a common 
sovereign.  There  the  danger  is  that  the  sovereign  will  have  too  much  power, 
and  oppress  the  parts  of  which  it  is  composed.  In  our  case,  that  of  an  empire 
composed  of  confederate  states,  each  wdth  a government  completely  organized 
within  itself,  having  all  the  means  to  draw  its  subjects  to  a close  dependence  on 
itself,  the  danger  is  directly  the  reverse.  It  is,  that  the  common  sovereign  will 
not  have  power  sufficient  to  unite  the  different  members  together,  and  direct 
the  common  forces  to  the  interest  and  happiness  of  the  whole.  . . . The  Con- 
federation, too,  gives  the  power  of  the  purse  too  entirely  to  the  state  legislatures. 
It  should  provide  perpetual  funds  in  the  disposal  of  Congress,  by  a land-tax, 
poll-tax,  or  the  like.  All  imposts  upon  ommerce  ought  to  be  laid  by  Congress, 


I 


238  CONSTITUTIONAL  HISTORY. 

for  the  appointment  of  delegates  to  the  proposed  convention.  In 
Congress  it  was  received  at  first  with  little  favor.  Doubts  were 
entertained  there  whether  any  changes  in  the  federal  government 


and  appropriated  to  tlieir  use;  for  without  certain  revenues  a government  can 
have  no  power;  that  power  which  holds  the  purse-strings  absolutely  must  rule. 
Tliis  seems  to  be  a medium  which,  without  making  Congress  altogetlier  inde- 
pendent, will  tend  to  give  reality  to  its  authority.  Another  defect  in  our  system 
is,  want  of  method  and  energy  in  the  administration.  This  has  partly  resulted 
from  the  other  defect;  but  in  a great  degree  from  prejudice  and  the  want  of  a 
proper  executive.  Congress  have  kept  the  power  too  much  in  their  own  hands, 
and  have  meddled  too  much  with  details  of  every  sort.  Congress  is  properly  a 
deliberative  corps,  and  it  forgets  itself  when  it  attempts  to  play  the  executive. 
It  is  impossible  that  a body,  numerous  as  it  is,  constantly  fluctuating,  can  ever 
act  with  sufficient  decision,  or  with  system.  Two  thirds  of  tlie  members,  one 
half  the  time,  cannot  know  what  has  gone  before  them,  or  what  connection  the 
subject  in  hand  has  to  what  has  been  transacted  on  former  occasions.  The  mem- 
bers who  liave  been  more  permanent  will  only  give  information  that  promotes 
the  side  they  espouse,  in  the  present  case,  and  will  as  often  mislead  as  enlighten. 
The  variety  of  business  must  distract,  and  the  proneness  of  every  assembly  to 
debate  must  at  all  times  delay.  Lastly,  Congress,  convinced  of  these  inconven- 
iences, have  gone  into  the  measure  of  appointing  boards.  But  this  is,  in  my 
opinion,  a bad  plan.  A single  man,  in  each  department  of  the  administration, 
would  be  greatly  preferable.  It  would  give  us  a chance  of  more  knowledge, 
more  activity,  more  responsibility,  and,  of  course,  more  zeal  and  attention. 
Boards  partake  of  the  inconveniences  of  larger  assemblies ; their  decisions  are 
slower,  their  energy  less,  their  responsibility  more  diffused.  They  will  not  have 
the  same  abilities  and  knowledge  as  an  administration  by  single  men.  Men  of 
the  first  pretensions  will  not  so  readily  engage  in  them,  because  they  will  be  less 
conspicuous,  of  less  importance,  have  less  oj)portunity  of  distinguishing  them- 
selves. The  members  of  boards  will  take  less  pains  to  inform  themselves  and 
arrive  at  eminence,  because  they  have  fewer  motives  to  do  it.  All  these  reasons 
conspire  to  give  a preference  to  the  plan  of  vesting  the  great  executive  depart- 
ments of  the  state  in  the  hands  of  individuals.  As  these  men  Avill  be,  of  course, 
at  all  times  under  the  direction  of  Congress,  we  shall  blend  the  advantages  of  a 
monarchy  in  one  constitution.  ...  I shall  now  propose  the  remedies  which  ap- 
pear to  me  applicable  to  our  circumstances,  and  necessary  to  extricate  our  nt- 
fairs  from  their  present  deplorable  situation.  The  first  step  must  be  to  give 
Congress  powers  competent  to  the  public  exigencies.  This  may  happen  in  two 
ways ; one,  by  resuming  and  exercising  the  discretionary  powers  I suppose  to  have 
been  originally  vested  in  them  for  the  safety  of  the  states,  and  resting  their  con- 
duct on  the  candor  of  their  countrymen  and  the  necessity  of  the  conjuncture  ; the 
other,  lyy  calling  immediately  a convention  of  all  the  states^  with  full  authority  to 
conclude  finally  upon  a general  confc^leration,  stating  to  them  beforehand  ex- 


THE  CON  F E I)  E li  A T I O N. 


230 


could  be  coustitutioually  made,  unless  they  were  to  originate  in 
Congress  and  were  then  to  be  adopte<l  by  the  legislatures  of  the 
states,  pursuant  to  the  mode  provided  by  the  Articles  of  Confeder- 
ation. The  legislatures,  it  was  argued,  could  not  adopt  any 
scheme  that  might  be  proposed  by  a convention ; and  if  it  were 
submitted  to  the  people,  it  was  not  only  doubtful  what  degree  of 
assent  on  their  part  would  make  it  valid,  but  it  was  also  doubtful 
whether  they  could  change  the  federal  system  by  their  own 
direct  action.  To  these  difficulties  was  to  be  added  the  further 
hazard,  that,  if  the  report  of  the  convention  should  be  made  to 


plicitly  tlie  evils  arising  from  a want  of  power  in  Congress,  and  the  impossibility 
of  supporting  the  contest  on  its  present  footing,  that  the  delegates  may  come 
possessed  of  proper  sentiments,  as  well  as  proper  authority,  to  give  efficacy  to 
the  meeting.  Their  commission  should  include  a right  of  vesting  Congress  with 
the  whole  or  a 'proiportion  of  the  unoccupied  lands,  to  he  employed  for  the  purpose  of 
raising  a revenue,  reserving  the  jurisdiction  to  the  states  hy  whom  they  are  granted. 
The  Confederation,  in  my  opinion,  should  give  Congress  a complete  sovereignty ; 
except  as  to  that  part  of  internal  police  which  relates  to  the  rights  of  property 
and  life  among  individuals,  and  to  raising  money  by  internal  taxes.  It  is  neces- 
sary that  everything  belonging  to  this  should  be  regulated  by  the  state  legisla- 
tures. Congress  should  have  complete  sovereignty  in  all  that  relates  to  war, 
peace,  trade,  finance  ; and  to  the  management  of  foreign  affairs;  the  right  of  de- 
claring war,  of  raising  armies,  officering,  paying  them,  directing  their  motfons  in 
every  respect;  ofequi[)ping  fleets,  and  doing  the  same  with  them;  of  building 
fortifications,  arsenals,  magazines,  etc. ; of  making  peace  on  such  conditions  as 
they  think  proper;  of  regulating  trade,  determining  with  what  countries  it  shall 
be  carried  on;  granting  indulgences;  laying  prohibitions  on  all  the  articles  of 
export  or  import;  imposing  duties,  granting  bounties  and  premiums  for  raising, 
exporting,  or  importing;  and  applying  to  their  own  use  the  product  of  these 
duties,  only  giving  credit  to  the  states  on  whom  they  are  raised  in  the  general 
account  of  revenues  and  expense  ; instituting  admiralty  courts,  etc. ; of  coining 
money,  establishing  banks  on  such  terms,  and  with  such  privileges,  as  they  think 
proper ; appropriating  funds,  and  doing  whatever  else  relates  to  the  operations 
of  finance;  transacting  everything  with  foreign  nations;  making  alliances  of- 
fensive and  defensive,  and  treaties  of  commerce,  etc.  . . . The  second  step  I 
would  recommend  is,  that  Congress  should  instantly  appoint  the  following 
great  officers  of  state:  a secretary  for  foreign  affairs;  a president  of  wnv;  a 
president  of  marine;  a financier;  a president  of  trade.  . . . These  officers 
should  have  nearly  the  same  powers  and  functions  as  those  in  France  analogous 
to  them,  and  each  should  be  chief  in  his  department,  with  subordinate  boards, 
composed  of  assistants,  clerks,  etc.,  to  execute  his  orders.”  Life  of  Hamilton  I. 
284-305. 


240 


CONSTITUTIONxVL  HISTORY. 


Congress,  as  proposed,  they  might  not  finally  adopt  it,  and  if  it 
should  be  rejected,  that  fatal  consequences  would  ensue.* 

The  report  of  the  Annapolis  commissioners  was,  however,  taken 
into  consideration ; and  in  the  course  of  the  following  winter  a 
report  upon  it  was  made  in  Congress,  which  conceded  the  fact 
that  the  Confederation  required  amendments,  and  that  the  pro- 
posed Convention  was  the  most  eligible  mode  of  effecting  them.'* 
But  this  report  had  to  encounter  the  objection,  entertained  by 
many  members,  that  the  measure  proposed  would  tend  to  weaken 
the  federal  authority,  by  lending  the  sanction  of  Congress  to  an 
extra-constitutional  proceeding.  Others  considered  that  a more 
summary  mode  of  proceeding  was  advisable,  in  the  form  of  a 
direct  appeal  to  the  people  of  every  state  to  institute  state  con- 
ventions, which  should  choose  delegates  to  a general  convention, 
to  revise  and  amend,  or  change,  the  federal  system,  and  to  publish 
the  new  constitution  for  general  observance,  without  any  reference 
to  the  states  for  their  acceptance  or  confirmation."  There  were 
still  others  who  preferred  that  Congress  should  take  up  the  de- 
fects of  the  existing  system,  point  them  out  to  the  legislatures 
of  the  states,  and  recommend  certain  distinct  alterations  to  be 
adopted  by  them." 

It  was  no  doubt  true  that  a convention  originating  with  the 
state  legislatures  was  not  a mode  pointed  out  by  the  Articles  of 
Confederation  for  effecting  amendments  to  that  instrument.  But 
it  was  equally  true  that  the  mere  amendment  of  that  instrument 
was  not  what  the  critical  situation  of  the  country  required.  On 
the  other  hand,  a convention  originating  with  the  people  of  the 

’ Abstract  of  an  Address  made  to  the  Legislature  of  Massachusetts,  by  the 
Hon.  Rufus  King,  in  October,  1786.  Boston  Magazine  for  tlie  year  1786,  p.  406. 

2 Mr.  Madison’s  Notes  of  Debates  in  tlie  Congress  of  the  Confederation.  El- 
liot, V.  96. 

® This  was  the  opinion  of  Mr.  Jay.  He  thought  that  no  alterations  should 
be  attempted,  unless  deduced  from  the  only  source  of  just  authority,  the  people. 
He  seems  to  have  considered  that,  if  the  people  of  the  states,  acting  through 
their  primary  conventions,  were  to  send  delegates  to  a general  convention,  with 
authority  to  alter  the  Articles  of  Confederation,  the  new  system  would  rest  upon 
the  authority  of  the  people,  without  further  sanction.  Sec  his  letter  to  Washing- 
ton, of  date  January  7,  1787.  Writings  of  Washington,  IX.  510. 

* Letter  of  General  Knox  to  Washington,  January  14,1787.  Writings  of 
Washington,  IX.  513. 


THE  CONFEDERATION. 


241 


states  would  undoubtedly  rest  upon  the  authority  of  the  people, 
in  its  inception  ; but,  if  the  s}^stem  which  it  ndght  frame  were  to 
go  into  operation  without  lirst  being  adopted  by  the  people,  it 
would  as  certainly  want  the  true  basis  of  their  consent.  These 
difficulties  were  felt  in  and  out  of  Congress.  But  it  does  not 
seem  to  have  occurred  to  those  who  raised  them  that  the  source 
from  which  the  Convention  should  derive  its  powers  to  frame  and 
recommend  a new  system  of  government  was  of  far  less  conse- 
(|uence  than  that  the  mode  in  which  the  system  recommended 
sliould  be  adopted  might  be  one  that  would  give  it  the  full  sanc- 
tion and  authority  of  the  people  themselves.  A constitution 
might  be  framed  and  recommended  by  any  body  of  individuals, 
whether  instituted  by  the  legislatures  or  the  people  of  the  states ; 
but  if  adopted  and  ordained  by  the  people  of  the  states  in  their 
corporate  capacities  it  would  rest  on  one  basis,  and  if  adopted 
and  ordained  by  the  people  of  the  states  acting  upon  it  directly 
and  primarily  it  would  obviously  rest  upon  another,  a different, 
and  a higher  authority. 

The  latter  mode  was  not  contemplated  by  Congress  when  they 
acted  upon  the  recommendation  of  the  Annapolis  commissioners. 
Accustomed  to  no  other  idea  of  a union  than  that  formed  by  the 
states  in  their  corporate  capacities  as  distinct  and  sovereign  com- 
munities; belonging  to  a body  constituted  by  the  states,' and 
therefore  officially  related  rather  to  the  governments  than  to  the 
people  of  the  states;  and  entertaining  a becoming  and  salutary 
fear  of  departing  from  a constitution  which  they  had  been  ap- 
pointed to  administer — the  members  of  the  Congres-s  of  1786-87 
were  not  likely  to  go  beyond  the  Annapolis  recommendation, 
'-which  in  fact  proposed  that  the  new  system  should  be  confirmed 
by  the  legislatures  of  the  states. 

But  the  course  of  events  tended  to  a different  result — to  an 
actual,  although  a peaceable  revolution,  by  the  quiet  substitution 
of  a new  government  in  place  of  the  old  one,  and  resting  upon  an 
entirely  different  basis.  While  Congress  were  debating  the  ob- 
jections to  a convention,  the  necessity  for  action  became  every 
day  more  stringent.  The  insurrection  in  Massachusetts,  which 
had  follovred  the  meeting  of  the  commissioners  at  Annapolis  and 
had  reached  a dangerous  crisis  when  their  report  was  before  Con- 
gress, had  alarmed  the  people  of  the  older  states  by  the  perils 
I.— 16 


242  CONSTITUTIONAL  HISTORY. 

of  an  anarchy  with  which  the  existing  national  government  w^ould 
be  obviously  unable  to  cope.  The  peril  of  losing  the  navigation 
of  the  Mississippi,  and  with  it  the  western  settlements,  through 
the  inefficiency  of  Congress,  was  also  at  that  moment  impending; 
while,  at  the  same  time,  the  commerce  of  the  country  was  nearly 
annihilated  by  a course  of  policy  pursued  by  England,  which 
Congress  was  utterly  unable  to  encounter.  Under  these  dangers 
and  embarrassments  a state  of  public  opinion  was  rapidly  de- 
veloped, in  the  winter  of  1787,  which  drove  Congress  to  action. 
The  objections  to  the  proposal  before  them  yielded  gradually  to 
the  stern  requirements  of  necessity,  and  a convention  w^as  at  last 
accepted,  not  merely  as  the  best,  but  as  the  only  practicable  mode 
of  reaching  the  first  great  object  by  which  an  almost  despairing 
country  might  be  reassured  of  its  future  welfare. 

The  final  change  in  the  views  of  Congress  in  regard  to  a con- 
vention w^as  produced  by  the  action  of  the  legislature  of  Uew 
York.  In  that  body,  as  we  have  seen,  the  impost  system  had 
been  rejected,  in  the  session  of  1786,  and  the  governor  of  the 
state  had  even  refused  to  reassemble  the  legislature  for  the  re- 
consideration of  this  subject.  A new  session  commenced  in  Jan- 
uary, 1787,  in  the  city  of  Yew  York,  where  Congress  was  also  sit- 
ting. A crisis  now  occurred,  in  which  the  influence  of  Hamilton 
was  exerted  in  the  same  manner  that  it  had  been  in  the  former 
session,  and  with  a similar  result.  On  that  occasion  he  had  fol- 
lowed up  the  rejection  of  the  impost  system  wfith  a resolve  for  the 
appointment  of  commissioners  to  attend  the  meeting  at  Annap- 
olis. It  was  now  his  purpose,  in  case  the  impost  system  should 
be  again  rejected,  to  obtain  the  sanction  of  Congress  to  the  rec- 
ommendation of  a convention,  made  by  the  Annapolis  commis- 
sioners. This,  he  w^as  aware,  could  be  effected  only  by  inducing 
the  legislature  of  Yew  York  to  instruct  the  delegates  of  their 
state  in  Congress  to  move  and  vote  for  that  decisive  measure. 
The  majority  of  the  members  of  Congress  were  indisposed  to 
adopt  the  plan  of  a convention;  and  although  they  might  be 
brought  to  recommend  it  at  the  instance  of  a state,  they  were 
not  inclined  to  do  so  spontaneously.’  The  crisis  required,  there- 
fore, all  the  address  of  Hamilton  and  of  the  friends  of  the  Union, 


’ Madison.  Elliot,  V.  96. 


THE  CONFEDERATION. 


243 


to  bring  the  influence  of  one  of  these  bodies  to  bear  upon  the 
other. 

The  reiterated  recommendation  by  Congress  of  the  impost 
system,  now  addressed  solely  to  the  state  of  New  York,  who  re- 
mained alone  in  her  refusal,  necessarily  occupied  the  earliest  at- 
tention of  the  new  legislature.'  A warm  discussion  upon  a bill 
introduced  for  the  purpose  of  effecting  the  grant  as  Congress  had 
asked  for  it,  ended,  on  the  15th  of  February,  in  its  defeat.  The 
subject  of  a general  convention  of  the  states,  according  to  the 
})lan  of  the  Annapolis  commissioners,  was  then  before  Congress, 
on  the  report  of  a grand  committee ; ^ and  Congress  were  hesita- 
ting upon  its  expediency.  At  this  critical  juncture  Hamilton 
carried  a resolution  in  the  legislature  of  New  York,  instructing 
the  delegates  of  that  state  in  Congress  to  move  for  an  act  rec- 
ommending the  states  to  send  delegates  to  a convention  for  the 
purpose  of  revising  the  Articles  of  Confederation,  which,  four 
days  afterwards,  was  laid  before  Congress.^ 

Virginia  and  North  Carolina  had  already  chosen  delegates  to 
the  Convention,  in  compliance  with  the  recommendation  from 
Annapolis;  and  Massachusetts  was  about  to  make  such  an  ap- 
pointment, under  the  influence  of  her  patriotic  Bowdoin.  In  this 
posture  of  affairs,  although  the  proposition  of  the  New  York  del- 
egation failed  to  be  adopted,^  the  fact  that  she  had  thus  solicited 


^ It  was  broiiglit  before  them  by  the  speech  of  the  governor  (Clinton),  in- 
forming them  of  the  resolutions  of  Congress,  which  had  requested  an  immediate 
call  of  the  legislature  to  consider  the  revenue  system,  “a  subject,”  he  observed, 
“which  had  been  repeatedly  submitted  to  them,  and  must  be  well  understood.” 
Journals,  XII.  15.  February  21,  1787. 

2 Ibid.  The  vote  rejecting  the  impost  bill  was  taken  on  the  15th  of  Febru- 
ary. The  resolution  of  instructions  was  passed  on  the  17th,  and  was  laid  be- 
fore Congress  on  the  21st. 

•*  Mr.  Madison  has  recorded  the  suspicions  with  which  this  resolution  of  the 
New  York  legislature  was  received.  Their  previous  refusal  of  the  impost  act, 
and  their  known  anti-federal  tendencies,  gave  rise,  he  says,  to  the  belief  that 
their  object  was  to  obtain  a convention  without  having  it  called  under  the 
authority  of  Congress,  or  else,  by  dividing  the  plans  of  the  states  in  their  ap- 
pointments of  delegates,  to  frustrate  them  all.  (Madison.  Elliot,  V.  96).  But 
whatever  grounds  tliere  might  have  been  for  either  of  these  suspicions,  tlie  latter 
ceitainly  was  not  well  founded.  The  New  York  resolution  was  drafted  by  Ham- 
ilton, and  although  it  was  passed  by  a body  in  which  a majority  had  not  exhib- 


244 


CONSTITUTIONAL  HISTORY. 


the  action  of  Congress  was  of  decisive  influence,  when  the  mem- 
bers from  Massachusetts  followed  it  immediately  by  a resolve 
more  acceptable  to  a majority  of  the  assembly.' 


ited  a disposition  to  enlarge  the  authority  of  Congress,  it  was  manifestly  not  in- 
tended to  prevent  the  adoption  of  the  plan  of  a convention.  It  contemplated 
the  passage  by  Congress  of  an  act,  recommending  the  states  to  institute  a con- 
vention of  representatives  of  the  states  to  revise  the  Articles  of  Confederation ; 
and  the  resolution  introduced  by  the  New  York  delegation  into  Congress  pro- 
posed that  the  alterations  and  amendments  which  the  Convention  might  con- 
sider necessary  to  render  the  Articles  of  Confederation  ‘‘adequate  to  the  piesei- 
vation  and  support  of  the  Union  ” should  be  reported  to  Congress  and  to  the 
states  respectively,  but  did  not  direct  liow  they  should  be  adopted.  This  would 
liave  left  open  a great  question,  and  seemed  to  be  a departure  from  the  mode  in 
which  the  Articles  of  Confederation  directed  that  amendments  should  be  made. 
Probably  it  was  Hamilton’s  intention  to  leave  the  form  in  which  the  new  sys- 
tem should  be  adopted  for  future  action,  without  fettering  the  movement  by 
prescribing  the  mode  before  the  Convention  had  assembled.  But  this  course 
was  pracdcally  impossible.  Congress  could  not  be  prevailed  upon  to  recom- 
mend a convention,  without  making  the  condition  that  the  new  provisions 
should  be  reported  to  Congress  and  confirmed  by  the  states.  This  gave  rise  to 
great  embarrassment  in  the  Convention,  when  it  came  to  be  admitted  that  the 
Confederation  must  be  totally  superseded,  and  not  amended;  and  it  was  finally 
disregarded.  But  it  was  the  only  mode  in  which  the  Convention  could  have 
been'i-ecommended  by  Congress,  and  without  that  recommendation,  probably, 
it  could  not  liave  been  instituted. 

’ The  resolution  introduced  by  the  Massachusetts  delegation,  when  that  of 
New  York  had  been  rejected,  after  being  amended,  was  finally  passed  in  the  fol- 
lowing terms:  “Wliereas,  there  is  provision  in  the  Articles  of  Confederation 
and  Perpetual  Union  for  making  alterations  therein,  by  the  assent  of  a Congress 
of  the  United  States,  and  of  the  legislatures  of  the  several  states;  and  wliercas 
experience  hath  evinced  that  there  are  defects  in  tlie  present  Confederation,  as  a 
mean  to  remedy  which  several  of  the  states,  and  particularly  the  state  of  New 
York,  by  express  instructions  to  their  delegates  in  Congress,  have  suggested  a 
convention  for  tlie  purposes  expressed  in  -the  following  resolution;  and  such  a 
convention  appearing  to  be  tlie  most  probable  means  of  establishing  in  these 
states  a firm  national  government ; That  in  the  opinion  of  Congress  it 

is  expedient  that,  on  the  second  M(lnday  in  May  next,  a convention  of  delegates, 
who  shall  have  been  appointed  by  the  several  states,  be  held  at  Philadelphia, 
for  the  sole  and  express  purpose  of  revising  the  Articles  of  Confederation,  and 
reporting  to  Congress  and  the  several  legislatures  such  alterations  and  provis- 
ions therein  as  shall,  when  agreed  to  in  Congress  and  confirmed  by  the  states, 
render  the  Federal  Constitution  adequate  to  tlie  exigencies  of  government  and 
the  preservation  of  the  Union.”  Journals,  XH.  iT.  ^^^ebruary  21,  1787. 


THE  CONFEDERATION. 


245 


The  recoinincndation,  as  it  Avent  forth  from  Congress,  Avas 
strictly  limited  to  a revision  of  the  Articles  of  Confederation,  by 
a convention  of  delegates,  and  the  alterations  and  new  ])rovisions 
Avere  to  be  rej)orted  to  Congress,  and  Avere  to  be  agreed  to  in 
Congress  and  confirmed  by  the  states.  Thus  the  resolution  pur- 
sued carefull}^  the  mode  of  amendment  and  alteration  provided  by 
the  Articles  of  Confederation,  except  that  it  interposed  a conven- 
tion for  the  purpose  of  originating  the  changes  to  be  proposed  in 
the  existing  form  of  government ; adding,  howcA^er,  the  great  gen- 
eral purpose  of  rendering  the  Federal  Constitution  adequate  to 
the  exigencies  of  government  and  the  preserA^ation  of  the  Union. 

The  point  thus  gained  wsis  of  vast  and  decisiA^e  importance. 
That  Congress  should  forego  the  right  of  originating  changes  in 
the  system  of  government;’  that  it  should  advise  the  states  to 
confer  that  power  upon  another  assembly;  and  that  it  should 
sanction  a general  revision  of  the  Federal  Constitution,  Avith  the 
express  declaration  of  its  present  inadequacy — Avere  all  prelimi- 
naries essential  to  a successful  reform.  Feeble  as  it  had  become 
from  the  overgroAvn  vitality  of  state  poAver,  and  from  the  lack  of 
numbers  and  talent  upon  its  roll,  it  Avas  still  the  government  of 
the  Union;  the  Congress  of  America;  the  lineal  successors  of 
that  renowned  assembly  Avhich  had  defied  the  poAv6r  of  England, 
and  brought  into  existence  the  thirteen  United  States.  If  it 
stood  but  the  poor  shadoAV  of  a great  name,  it  Avas  still  a name 
Avith  Avhich  to  do  more  than  conjure ; for  it  bore  a constitutional 
relation  to  the  states,  still  reverenced  by  the  Avise  and  thoughtful, 
and  still  necessary  to  be  regarded  by  all  Avho  desired  the  security 
of  constitutional  liberty.  The  risk  of  immediate  attempts  to  es- 
tablish a monarchical  form  of  government  Avas  not  inconsiderable. 
The  risk  that  civil  confusion  Avould  folloAv  a longer  delay  to  pro- 
Aude  for  the  pressing  Avants  of  the  country  Avas  greater.  De- 
jection and  despondency  had  taken  hold  of  many  minds  of  the 

^ Tlie  Articles  of  Confederation  did  not  expressly  require  that  amendments 
should  be  prepared  and  proposed  in  Congress.  The  tliirteenth  Article  pro- 
vided that  no  alteration  should  be  made,  unless  it  should  “ be  agreed  to  in  a 
Congress  of  the  United  States,  and  be  afterwards  confirmed  by  the  legislatures 
of  every  state.”  But  it  was  clearly  implied  by  this  that  Congress  were  to  have 
the  power  of  recommending  alterations,  and  this  power  was  exercised  in  1783, 
with  regard  to  the  rule  of  apportionment. 


24G 


CONSTITUTIONAL  HISTORY. 


highest  order;  while  the  great  body  of  the  people  were  desiring 
a change  which  they  could  not  define,  and  which  they  feared, 
while  they  invited  its  approach.  In  such  a state  of  things,  con- 
siderate men  were  naturally  unwilling  to  turn  entirely  away  from 
Congress,  or  to  exclude  its  agency  altogether  from  the  processes 
of  reform,  and  to  embark  upon  the  uncertain  sea  of  political  ex- 
periment, without  chart  or  rule  to  guide  their  course ; for  no  man 
could  tell  what  projects,  what  schemes,  and  what  influences  might 
arise  to  jeopard  those  great  principles  of  republican  liberty  on 
which  the  political  fabric  had  rested  from  the  Declaration  of 
Independence  to  the  present  hour  of  danger  and  distress. 

For  the  wise  precedent,  thus  established,  of  placing  the  forma- 
tion of  a new  government  under  the  direct  sanction  of  the  old 
one,  the  people  of  this  country  are  indebted  chiefly  to  Hamilton. 
Hothing  can  be  more  unfortunate,  in  any  country,  than  the  neces- 
sity or  the  rashness  which  sweeps  away  an  established  constitu- 
tion before  a substitute  has  been  devised.  Whether  the  interval 
be  occupied  by  provisional  arrangements,  or  left  to  a more  open 
anarchy,  it  is  an  unfit  season  for  the  creation  of  new  institutions. 
At  such  a time  the  crude  projects  of  theorists  are  boldly  intruded 
among  the  deliberations  of  statesmen ; despotism  lies  in  wait  for 
the  hazards  by  which  liberty  is  surrounded  ; the  multitude  are 
unrestrained  by  the  curb  of  authority ; and  society  is  exposed  to 
the  necessity  of  accepting  whatever  is  offered,  or  of  submitting  to 
the  first  usurper  who  may  seize  the  reins  of  government,  because 
it  has  nothing  on  which  to  rest  as  an  alternative.  True  liberty 
has  gained  little,  in  any  age  or  country,  from  revolutions  which 
have  excluded  the  possibility  of  seeking  or  obtaining  the  assent 
of  existing  power  to  the  reforms  which  the  progress  of  society 
has  demanded. 

In  the  days  when  the  Confederation  was  tottering  to  its  fall ; 
when  its  revenues  had  been  long  exhausted ; and  when  its  Con- 
gress embraced,  in  actual  attendance,  less  than  thirty  delegates 
from  only  eleven  of  the  states,  it  would  have  been  the  easy  part 
of  a demagogue  to  overthrow  it  by  a sudden  appeal  to  the  pas- 
sions and  interests  of  the  hour,  as  the  first  step  to  a radical 
change.'  But  the  great  man,  whose  mature  and  energetic  youth. 


’ Governor  Randolph  of  Virginia,  writing  to  Washington,  on  the  11th  of 


THE  CONEEDEUATION. 


2i7 


trained  in  tlio  school  of  Wasliington,  liad  been  devoted  to  the 
formation  and  establisliment  of  the  Union,  knew  too  well  that, 
if  its  golden  cord  were  once  broken,  no  human  agency  could  re- 
store it  to  life,  lie  knew  tlie  value  of  habit,  the  respect  for  an 
established,  however  enfeebled,  authority ; and  wdiile  he  felt  and 
insisted  on  the  necessity  for  a new  constitution,  and  did  all  in  his 
])ower  to  make  the  country  perceive  the  defects  of  the  old  one, 
he  wisely  and  honestly  admitted  that  the  assent  of  Congress  must 
be  gained  to  any  movement  which  proposed  to  remedy  the  evil. 

But  the  reason  for  not  moving  the  revision  of  the  system  of 
government  by  Congress  itself  was  one  that  could  not  be  publicly 
stated.  It  w’as,  that  the  highest  civil  talent  of  the  country  was 
not  there.  The  men  to  whom  the  American  people  had  been 
accustomed  to  look  in  great  emergencies  — the  men  who  were 
called  into  the  Convention,  and  whose  power  and  wisdom  were 
signally  displayed  in  its  deliberations — were  then  engaged  in  other 
spheres  of  public  life,  or  had  retired  to  the  repose  which  they  had 
earned  in  the  great  struggle  wdth  England.  Had  the  attempt 
been  made  by  Congress  itself  to  form  a constitution  for  the  ac- 
ceptance of  the  states,  the  controlling  influence  and  wisdom  of 
Washington,  Franklin’s  wide  experience  and  deep  sagacity,  the 
unrivalled  capacities  of  Hamilton,  the  brilliant  powers  of  Gouver- 
neur  Morris,  Pinckney’s  fertility,  and  Eandolpli’s  eloquence,  with 
all  the  powmr  of  their  eminent  colleagues  and  all  the  strength  of 
principle  and  of  character  which  they  brought  to  the  Convention, 
Avould  have  been  withheld  from  the  effort.  One  very  important 
man,  it  is  true,  was  still  there.  Madison  was  in  Congress ; and 
Madison’s  part  in  the  framing  of  the  Constitution  was  eminently 
conspicuous  and  useful.  But  without  the  concentration  of  talent 


March,  1787,  and  urging  him  to  attend  the  Convention,  said : “I  must  call 
upon  your  friendship  to  excuse  me  for  again  mentioning  the  Convention  at 
Philadelphia.  Your  determination  having  been  fixed  on  a thorough  review  of 
your  situation,  I feel  like  an  intruder  when  I again  hint  a wish  that  you  would 
join  the  dedegation.  But  every  day  brings  forth  some  new  crisis,  and  the  Con- 
federation is,  I fear,  the  last  anchor  of  our  hope.  Congress  have  taken  up  the 
subject,  and  appointed  the  second  Monday  in  May  next  as  the  day  of  meeting. 
Lideed,  from  my  irate  correspondence,  I doult  icliether  the  existence  of  that  lody, 
even  through  this  year,  may  not  he  questionahle  under  our  present  circumstances'' 
Sparks's  Washington,  IX.  243,  note. 


248 


CONSTITUTIONAL  IIISTOIiY. 


which  the  Convention  drew  together,  representing  every  interest 
and  every  part  of  the  Union,  nothing  conld  have  been  presented 
to  the  states,  by  the  Congress  of  1787,  which  would  have  com- 
manded their  assent.  The  Constitution  owed  as  much,  for  its 
acceptance,  to  tlie  weight  of  character  of  its  framers,  as  it  did  to 
their  wisdom  and  ability,  for  the  intrinsic  merits  which  that  weight 
of  cliaracter  enforced. 

It  was  fortunate,  also,  that  the  Congress  did  nothing  more  than 
to  recommend  the  Convention,  without  undertaking  to‘define  its 
powers.  The  doubts  concerning  its  legality,  which  led  many 
persons  of  great  influence  to  hesitate  in  sanctioning  it,  were  thus 
removed,  and  the  states  were  left  free  to  join  in  the  movement, 
as  an  expedient  to  discover  and  remedy  the  defects  of  the  federal 
government,  without  fettering  their  delegates  with  explicit  instruc- 
tions.' In  this  way  the  Convention,  although  experimental  and 


^ The  states  of  Virginia,  New  Jersey,  Pennsylvania,  Nortli  Carolina,  and 
Delaware  had  appointed  their  delegates  to  the  Convention  before  it  was  sanc- 
tioned by  Congress.  Virginia  led  the  way;  and  the  following  preamble  to  lier 
act  shows  with  what  motives  and  objects  slie  did  so.  “ Whereas,  the  commis- 
sioners who  assembled  at  Annapolis,  on  the  14th  day  of  September  last,  for  the 
purpose  of  devising  and  reporting  the  means  of  enabling  Congress  to  provide 
effectually  for  t!ie  commercial  interests  of  the  United  States,  have  represented 
the  necessity  of  extending  the  revision  of  tlie  federal  system  to  all  its  defects, 
and  have  recommended  that  deputies  for  that  purpose  be  appointed  by  the  sev- 
eral legislatures,  to  meet  in  convention  in  the  city  of  Philadelphia,  on  the  2d 
dav  of  May  next  — a provision  which  was  preferable  to  a discussion  of  the 
subject  in  Congress,  where  it  might  be  too  much  interrupted  by  the  ordinary 
business  before  them,  and  where  it  would,  besides,  be  deprived  of  the  valuable 
counsels  of  sundry  individuals  who  are  disqualified  by  the  constitution  or  laws 
of  particular  states,  or  restrained  by  peculiar  circumstances  from  a seat  in  that 
assembly;  And  whereas  the  General  Assembly  of  this  commonwealth,  taking 
into  view  the  actual  situation  of  the  Confederacy,  as  well  as  reflecting  on  the 
alarming  representations  made  from  time  to  time  by  the  United  States  in  Con- 
gress, particularly  in  their  act  of  the  15th  day  of  February  last,  can  no  longer 
doubt  that  the  crisis  is  arrived  at  which  the  good  people  of  America  are  to 
decide  the  solemn  question,  whether  they  will,  by  wise  and  magnanimous  efforts, 
reap  the  just  fruits  of  that  independence  which  they  have  so  gloriously  acquired, 
and  of  that  Union  which  they  have  cemented  with  so  much  of  their  common 
l)lood — or  whether,  by  giving  way  to  unmanly  jealousies  and  prejudices,  or  to 
partial  and  transitory  interests,  they  will  renounce  the  auspicious  blessings  pre- 
pared for  them  by  the  Revolution,  and  furnish  to  its  enemies  an  eventful  triumph 


• THE  CONFEDERATION. 


240 

anomalous,  derived  its  influence  from  the  sources  in  which  it  orig- 
inated, and  was  enabled,  though  not  without  difficulty,  to  meet  the 
crisis  in  which  the  country  was  j)laced.  That  crisis  was  one  of  a 


over  those  by  whose  virtue  and  valor  it  has  been  accomplislied ; And  wliereas 
the  same  noble  and  extended  policy,  and  the  same  fraternal  and  affectionate 
sentiments,  which  originally  determined  the  citizens  of  this  commonwealth  to 
unite  with  their  brethren  of  the  other  states  in  establishing  a federal  govern- 
ment, cannot  but  be  felt  with  equal  force  now  as  motives  to  lay  aside  every 
inferior  consideration,  and  to  concur  in  such  further  concessions  and  provisions 
as  may  be  necessary  to  secure  the  great  objects  for  which  that  government  was 
instituted,  and  to  render  the  United  States  as  happy  in  peace  as  they  have  been 
glorious  in  war;  Be  it  therefore  enacted,  etc..  That  seven  commissioners  be 
appointed,  by  joint  ballot  of  both  houses  of  assembly,  who,  or  any  three  of 
them,  are  hereby  authorized  as  deputies  from  this  commonwealth  to  meet  such 
deputies  as  may  be  appointed  and  authorized  by  other  states,  to  assemble  in 
convention  at  Philadelphia,  as  above  recommended,  and  to  join  wdth  them  in 
devising  and  discussing  all  such  alterations  and  further  provisions  as  may  be 
necessary  to  render  the  Federal  Constitution  adequate  to  the  exigencies  of  the 
Union;  and  in  reporting  such  an  act,  for  that  purpose,  to  the  United  States  in 
Congress,  as,  wlien  agreed  to  by  them,  and  duly  confirmed  by  the  several  states, 
will  effectually  provide  for  the  same.”  (Elliot,  I.  132.)  The  instructions  of  New 
Jersey  to  her  delegates  were,  “to  take  into  consideration  the  state  of  the  Union 
as  to  trade  and  other  important  objects,  and  of  devising  such  other  provisions 
as  shall  appear  to  be  necessary  to  render  the  Constitution  of  the  federal  govern- 
ment adequate  to  the  exigencies  thereof.”  (Ibid.,  128.)  The  act  of  Pennsylvania 
provided  for  the  appointment  of  deputies  to  join  with  the  deputies  of  other 
states  “in  devising,  deliberating  on,  and  discussing  all  such  alterations  and 
further  provisions  as  may  be  necessary  to  render  the  Federal  Constitution  fully 
adequate  to  the  exigencies  of  the  Union,  and  in  reporting  such  act  or  acts,  for 
that  purpose,  to  the  United  States  in  Congress  assembled,  as,  when  agreed  to  by 
them,  and  duly  confirmed  by  the  several  states,  will  effectually  provide  for  the 
same.”  (Ibid.,  130.)  The  instructions  of  Delaware  were  of  the  same  tenor.  (Ibid., 
131.)  The  act  of  North  Carolina  directed  her  deputies  “ to  discuss  and  decide 
upon  the  most  effectual  means  to  remove  the  defects  of  our  Federal  Union,  and 
to  procure  the  enlarged  purposes  which  it  was  intended,  to  effect;  and  that  they 
report  such  an  act  to  the  General  Assembly  of  this  state,  as,  when  agreed  to 
by  them,  will  effectually  provide  for  the  same.”  (Ibid.,  135.)  The  instructions 
to  the  delegates  of  New  Hampshire  were  of  the  same  tenor.  (Ibid.,  126.)  The 
appointment  of  the  delegates  of  Massachusetts  was  made  with  reference  to  the 
terms  of  the  resolve  of  Congress  recommending  the  Convention,  and  for  the 
purposes  declared  therein.  (Ibid.,  126,  127.)  The  appointment  of  Connecticut 
was  made  with  the  same  reference,  and  with  the  further  direction  “to  discuss 
upon  such  alterations  and  provisions,  agreeably  to  the  general  principles  of 


250 


CONSTITUTIONAL  HISTORY. 


singular  character;  for  the  continued  existence  of  the  Union  and 
the  fate  of  republican  governments  were  both  involved.  It  was 
felt  and  admitted  by  the  wisest  men  of  that  day  that  if  the  Con- 
vention should  fail  in  devising  and  agreeing  upon  some  system  of 
government,  at  once  capable  of  perv^ading  the  country  with  an 
efficient  control,  and  essentially  republican  in  its  form,  the  Federal 
Union  would  be  at  an  end.  But  its  dissolution,  in  the  state  in 
which  the  country  then  was,  must  have  been  followed  by  an 
attempt  to  establish  monarchical  government ; because  the  state 
institutions  were  destitute  of  the  strength  necessary  to  encounter 
the  agitation  which  would  have  followed  the  downfall  of  the 
federal  power,  and  yet  some  substitute  for  that  power  must  have 
been  found.  But  without  civil  war,  and  the  most  frightful  social 
convulsions,  nothing  in  the  nature  of  monarchy  could  ever  have 
been  established  in  this  country  after  the  Kevolution.  “ Those 
who  lean  to  a monarchical  government,”  said  Washington,  '‘have 
either  not  consulted  the  public  mind,  or  they  live  in  a region  which 
(the  levelling  principles  in  which  they  were  bred  being  entirely 
eradicated)  is  much  more  productive  of  monarchical  ideas  than  is 
the  case  in  the  Southern  States,  where,  from  the  habitual  distinc- 
tions which  have  always  existed  among  the  people,  one  would 
have  expected  the  first  generation  and  the  most  rapid  growth  of 
them.  I am  also  clear  that,  even  admitting  the  utility,  nay, 
necessity,  of  the  form,  the  period  is  not  arrived  for  adopting  the 
change  without  shaking  the  peace  of  this  country  to  its  founda- 
tion. That  a thorough  reform  of  the  present  system  is  indispen- 
sable, no  one,  who  has  a capacity  to  judge,  will  deny ; and  with 
hand  and  heart  I hope  the  business  will  be  essayed  in  a full  con- 
vention. After  which,  if  more  powers  and  more  decision  are  not 
found  in  the  existing  form,  if  it  still  wants  energy  and  that  secrecy 
and  despatch  (either  from  the  non-attendance  or  the  local  views 


republican  government,  as  they  shall  think  proper  to  render  the  Federal  Consti- 
tution adequate  to  the  exigencies  of  government  and  the  preservation  of  the 
Union ; and  they  are  further  directed,  pursuant  to  the  said  act  of  Congress,  to 
report  such  alterations  and  provisions  as  may  be  agreed  to  by  a majority  of  the 
United  States  represented  in  convention,  to  the  Congress  of  the  United  States, 
and  to  the  General  Assembly  of  this  state.”  (Ibid.,  127.)  The  resolutions  of 
New  York,  Maryland,  South  Carolina,  and  Georgia  pursued  nearly  the  same 
terms  with  the  resolve  of  Congress.  (Ibid.,  127,  131,  136,  137.) 


THE  CONFEDERATION. 


251 

of  its  members)  wliicli  are  characteristic  of  good  gov'crnment,  and 
if  it  shall  be  found  (the  contrary  of  which,  however,  I have  always 
been  more  afraid  of  than  the  abuse  of  them)  that  Congress  will, 
upon  all  proper  occasions,  exert  the  powers  which  are  given  with 
a tirm  and  steady  hand,  instead  of  frittering  them  back  to  the 
states,  where  the  members,  in  j)lace  of  viewing  themselves  in  their 
national  character,  are  too  apt  to  be  looking — say,  after  this 
essay  is  made,  it  the  system  ])roves  inefficient,  conviction  of  the 
necessity  of  a change  will  be  disseminated  among  all  classes  of 
the  people.  Then,  and  not  till  then,  in  my  opinion,  can  it  be 
attempted  without  avoiding  all  the  evils  of  civil  discord*”  ' 

There  were  other  difficulties  besides  those  which  may  be  called 
legal,  or  technical,  attending  this  effort  to  revise  the  system  of 
the  federal  government.  The  failure  of  that  system,  as  it  had 
been  put  in  operation  in  1781,  had,  to  a great  extent,  chilled  the 
hopes  of  many  of  the  best  statesmen  of  America.  It  had  been 
established  under  auspices  which  seemed  to  promise  far  different 
fruits  from  those  it  had  actually  produced.  Its  foundations  were 
laid  in  the  patriotism  and  national  feeling  of  the  states.  The 
concessions  which  had  been  made  to  secure  a union  of  republics 
having  various,  and,  in  some  respects,  conflicting  interests,  seemed 
at  first  to  guarantee  the  prompt  and  faithful  performance  of  its 
obligations.  But  this  fair  promise  had  melted  into  most  unsub- 
sffintial  performance.  The  Confederation  was  framed  upon  a prin- 
ciple which  never  has  enabled,  and  probably  never  will  enable,  a 
government  to  become  effective  and  permanent — the  principle  of 
a league. 

Another  and  a very  serious  cause  for  discouragement  was  the 
sectional  and  state  pride  which  had  been  constantly  growing,  from 
the  Declaration  of  Independence  to  the  time  when  the  states  were 
called  upon  to  meet  each  other  upon  broader  grounds,  and  to 
make  even  larger  sacrifices  than  at  any  former  period.  It  is  diffi- 
cult to  trace  to  all  its  causes  the  feeling  which  has  at  times  arrayed 
the  different  extremities  of  this  Union  against  each  other.  It  was 
very  early  developed,  after  the  different  provinces  were  obliged 
to  act  together  for  their  great  mutual  objects  of  political  independ- 
ence ; and,  even  in  its  highest  paroxysms,  prior  to  our  late  civil 


^ Sparks’s  Washington,  IX.  223,  225,  230,  23G,  508-520. 


252  CONSTITUTIONAL  HISTORY. 

war,  it  always  found  an  antidote  in  the  deeper  feelings  and  more 
sober  calculations  of  a consistent  patriotism.  Perhaps  its  prev- 
alence and  activity  may  Avith  more  truth  be  ascribed,  in  every 
generation,  to  the  ambition  of  men  who  find  in  it  a convenient 
instrument  of  local  influence,  rather  than  to  any  other  cause.  It 
is  certain  that,  Avhen  it  has  raged  most  violently,  this  has  been 
its  chief  aggravating  element.  The  differences  of  neither  manners, 
institutions,  climate,  nor  pursuits  Avould  at  any  time  have  been 
sufficient  to  create  the  perils  to  which  the  Union  of  the  states  has 
occasionally  been  exposed,  Avithout  the  mischievous  agency  of  men 
Avhose  personal  objects  are,  for  the  time,  subserved  by  the  exist- 
ence of  such  peculiarities.  The  proof  of  this  is  to  be  found  in  the 
fact  that  the  seasonable  sagacity  of  the  people  has  sometimes 
detected  the  motives  of  those  Avho  have  sought  to  employ  their 
passions,  and  has  compelled  them  at  last  to  give  Avay  to  that  better 
order  of  men  Avho  ha\"e  appealed  to  their  reason.  But,  unhappily, 
this  has  not  always  been  the  case. 

The  difficulty  of  getting  the  assent  of  all  the  states  to  radical 
changes  in  the  federal  system,  and  the  uncertainty  as  to  the  mode 
in  Avhich  such  changes  could  be  effectively  adopted,  Avere  also 
among  the  reasons  Avhicli  led  many  persons  to  regard  the  Conven- 
tion as  an  experiment  of  doubtful  expediency.  The  states  had 
hitherto  acted  only  in  their  corporate  capacities,  in  all  that  con- 
cerned the  formation  and  modification  of  the  Union.  The  idea 
of  a union  founded  on  the  direct  action  of  the  people  of  the  states, 
in  a primary  sense,  and  proceeding  to  establish  a federal  govern- 
ment, of  limited  poAvers,  in  the  same  manner  in  Avhich  the  people 
of  each  state  had  established  their  local  constitutions,  had  not 
been  publicly  broached,  and  Avas  not  generally  entertained.  In- 
deed, there  Avas  no  expectation  on  the  part  of  any  state,  Avhen 
the  delegates  to  the  Convention  Avere  appointed,  that  any  other 
principle  Avould  be  adopted  as  the  basis  of  action  than  that  by 
Avhich  the  Articles  of  Confederation  contemplated  that  all  changes 
should  be  effected  by  the  action  of  the  states  assembled  in  Con- 
gress, confirmed  by  the  unanimous  assent  of  the  different  state 
legislatures. 

The  prevailing  feeling  among  the  higher  statesmen  of  the 
country  Avas  that  the  ConA^ention  AA^as  an  experiment  of  doubtful 
tendency,  but  one  that  must,  ne\wtheless,  be  tried.  AVashington, 


THE  CONFEDERATION. 


253 


Madison,  Jay,  Knox,  Edmund  Kandolph,  have  all  left  upon  record 
the  evidence  of  their  doubts  and  their  fears,  as  well  as  of  their 
convictions  of  the  necessity  ,for  this  last  effort  in  favor  of  the 
preservation  of  a republican  form  of  government.'  Hamilton 
advanced  to  meet  the  crisis  with  perhaps  less  hesitation  than  any 
of  the  revolutionary  statesmen.  His  great  genius  for  political 
construction ; his  large  knowledge  of  the  means  by  which  a reg- 
ulated liberty  may  be  secured;  and  the  long  study  with  which 
he  had  contemplated  the  condition  of  the  country,  led  him  to 
enter  the  Convention  with  more  of  eagerness  and  hope  than  most 
of  its  members.  He  saw  with  great  clearness  that  the  difficulty 
which  embarrassed  nearly  all  his  contemporaries — the  question  of 
the  mode  of  enacting  a new  constitution — was  capable  of  solution. 
He  did  not  propound  that  solution  in  advance  of  the  assembling  of 
the  Convention ; for  it  was  eminently  necessary  that  the  states 
should  not  be  alarmed  by  the  suggestion  of  a principle  so  novel 
and  so  unlike  the  existing  theory  of  the  Union.  But  he  was  fully 
prepared  to  announce  it,  so  soon  as  it  could  be  received  and  acted 
upon. 

It  was  under  such  auspices  and  with  such  views  that  the  Con- 
vention assembled  at  Philadelphia  on  the  fourteenth  day  of  May, 
in  the  year  seventeen  hundred  and  eighty-seven. 

At  that  time  the  world  had  witnessed  no  such  spectacle  as  that 
of  the  deputies  of  a nation,  chosen  by  the  free  action  of  great 
communities,  and  assembled  for  the  purpose  of  thoroughly  reform- 
ing its  constitution,  by  the  exercise  and  with  the  authority  of  the 
national  will.  All  that  had  been  done,  both  in  ancient  and  in 
modern  times,  in  forming,  moulding,  or  modifying  constitutions 
of  government,  bore  little  resemblance  to  the  present  undertaking 
of  the  states  of  America.  Keither  among  the  Greeks  nor  the  Eo- 
mans  was  there  a precedent,  and  scarcely  an  analogy.  The  ancient 
leagues  of  some  of  the  cities  or  republics  of  Greece  did  not  amount 
to  constitutions,  in  the  sense  of  modern  political  science ; and  the 
Eoman  republic  was  but  the  domination  of  a single  race  of  the 
inhabitants  of  a single  city. 

In  modern  Europe  we  find  no  trace  of  political  science  until 
1 Sparks’s  Wasliington,  IX.  223,  225,  230,  233,  508-520. 


254 


CONSTITUTIONAL  HISTORY. 


after  the  nations  were  divided,  and  partial  limits  set  to  the  differ- 
ent orders  and  powers  of  the  state.  The  feudal  system,  which 
acknowledged  no  relations  in  society  but  those  of  lord  and  serf, 
necessarily  forbade  all  consideration  of  any  forms  of  government 
which  were  not  essentially  founded  on  that  relation ; and  it  was 
not  until  that  relation  had  been  in  some  degree  broken  in  upon 
that  there  began  to  be  anything  like  theoretical  inquiries  into  nat- 
ural rights.  When  this  took  place— at  the  end,  or  towards  the 
end,  of  the  Middle  Ages— the  peculiar  forms  of  the  European  gov- 
ernments gave  rise  to  inquiries  into  the  relation  of  sovereign  and 
subject.  From  the  beginning  of  the  fifteenth  down  to  the  end  of 
the  seventeenth  century  there  were  occasional  discussions  on  the 
continent,  growing  out  of  particular  events,  of  such  questions  as 
the  right  of  the  people  to  depose  bad  princes,  and  how  far  it  was 
lawful  to  resist  oppression.  But  questions  of  constitutional  form, 
or  of  the  right  of  the  people  to  arrange  and  distribute  the  differ- 
ent powers  of  government,  or  the  best  mode  of  doing  it,  did  not 
arise  at  all. 

In  England,  from  the  time  of  the  Conquest  until  Magna  Charta 
had  gone  far  towards  destroying  the  system,  a feudal  monarchy 
had  precluded  all  questions  touching  the  form  or  the  spirit  of  gov- 
ernment. The  chief  traits  of  the  present  constitution,  which  arose 
in  a great  measure  from  the  circumstance  that  the  lower  orders 
of  the  nobility  became  gradually  so  much  amalgamated  with  the 
people  as  to  give  rise  to  the  distinct  powder  of  the  commons,  ha\e 
all  along  been  inconsistent  with  the  enactment  of  new  forms  of 
civil  polity ; although,  from  the  time  of  the  Keformation  to  the 
Kevolution  of  1688,  the  active  principles  of  English  freedom  have, 
at  different  junctures,  made  advances  of  the  utmost  importance. 
The  foundations  on  which  the  Stuarts  sought  to  establish  their 
throne  were  directly  at  variance  with  the  spirit  and  principles  of 
the  Keformation,  which  totally  denied  the  doctrine  of  passive  and 
unlimited  obedience,  and  which  led  to  the  struggles  that  gave 
birth  to  the  Puritans.  Those  severe  reformers,  whose  church  con- 
stitution was  purely  republican,  naturally  sought  to  carry  its  prin- 
' ciples  into  the  state.  The  result  Avas  the  parliamentary  troubles  of 
James  the  First,  the  execution  of  Charles  the  First  under  the 
forms  of  judicial  proceeding,  and  the  despotism  of  Cromwell  under 
the  forms  of  a commonAvealth.  Charles  the  Second  letuined. 


THE  CONFEDERATION. 


255 


imtauglit  by  all  that  had  happened,  to  attempt  the  re-estahlish- 
ment  of  the  Stuart  ])rinciples  of  unlimited  obedience;  and  James 
the  Second,  who  naturally  united  to  them  the  Catholic  religion, 
being  driven  from  his  kingdom,  the  question  arose  of  a vacant 
throne,  and  how  it  should  be  filled.  In  all  these  events,  however, 
from  the  death  of  Elizabeth  to  the  great  discussions  which  followed 
the  abdication  of  James  the  Second,  the  idea  of  calling  upon  the 
people  of  England  to  frame  a government  of  their  own  choice,  and 
to  define  the  limits  and  powers  of  its  various  departments,  never 
arose.  The  Convention  Parliament  discussed,  and  were  summoned 
to  discuss,  but  a single  fundamental  question — that  involving  the 
disposal  of  the  crown. 

Still,  the  political  troubles  of  England  gave  rise  to  many  theo- 
retical discussions  of  natural  right  and  of  the  origin  and  structure 
of  society.  As  soon  as  Charles  the  First  was  executed  this  dis- 
cussion arose  abroad,  from  his  friends,  who  wrote,  or  influenced 
others  to  write,  in  defence  of  the  divine  right  of  kings.  Hobbes 
and  Filmer  followed,  in  England,  on  the  same  side,  and  Milton, 
Locke,  and  Algernon  Sidney  vindicated  the  natural  and  inaliena- 
ble rights  of  the  subject  and  the  citizen.  In  the  works  of  these 
great  writers  the  foundations  of  society  are  examined  with  an 
acuteness  which  has  left  little  to  be  done  in  the  merely  specula- 
tive part  of  political  inquiry.  But  the  practical  effect  of  thdir 
theories  never  went  further  than  the  promotion,  to  a greater  or 
less  extent,  of  the  particular  views  which  they  desired  to  incul- 
cate concerning  the  existing  constitution,  or  the  particular  events 
out  of  which  the  discussion  arose. 

Hor  should  we  forget  what  had  been  done  in  France  by  the 
wise  and  cautious  Montesquieu,  or  by  the  vehement  and  passion- 
ate Eousseau,  and  the  writers  of  his  school.  The  former,  draw- 
ing all  his  views  from  history  and  experience,  undertook  to  show, 
from  the  antecedents  of  each  state,  the  character  of  its  constitu- 
tion, to  explain  and  develop  its  peculiar  properties,  and  thence  to 
determine  the  principles  on  which  its  legislation  should  proceed. 
The  latter,  starting  from  an  entirely  opposite  point,  and  designing 
to  write  a treatise  on  politics  in  the  widest  sense  of  the  term,  be- 
came a mere  theorist,  and  produced  only  certain  brilliant  specula- 
tions upon  the  social  compact,  of  a purely  democratic  character, 
as  fragments  of  a work  which  he  never  finished.  The  crowd  of 


.^50  CONSTITUTIONAL  HISTORV. 

writers,  too,  who  preceded,  and  in  part  created  the  French  Eevo- 
lution,  whicli  was  just  commencing  its  destructive  activity  as  our 
Constitution  was  formed,  really  contributed  nothing  of  practical 
value  to  the  solution  of  such  great  questions  as  the  mode  of  form- 
ing, vesting,  and  distributing  the  various  branches  of  sovereign 
power. 

Thus  there  was  little  for  American  statesmen  of  that  day  to 
look  to,  in  the  way  of  theories  which  had  been  practically  proved 
to  be  sound  and  useful.  The  constitution  of  England,  it  is  true, 
presented  to  them  certain  great  maxims,  the  application  of  which 
rvas  not  unsuited  to  the  circumstances  and  habits  of  a people  whose 
laws  and  institutions  had  been  derived  from  their  English  ances- 
tors and  their  English  blood.  But  the  constitution  of  England, 
embracing  the  three  estates  of  king,  lords,  and  commons,  had 
become  what  it  was  only  by  the  extortion  .from  the  crown  of  the 
rights  and  privileges  of  the  two  orders  of  the  people.  The  Amer- 
ican Revolution,  on  the  other  hand,  had  settled,  as  the  fundamen- 
tal principle  of  American  society,  that  all  sovereignty  resides  orig- 
inally in  the  people ; that  they  derive  no  rights  by  ivay  of  grant 
from  any  other  source ; and,  consequently,  that  no  pow'ers  or  pri\  - 
ileges  can  exist  in  any  portion  of  the  people  as  distinct  from  the 
wdmle.  The  English  constitution  could,  therefore,  furnish  only 
occasional  analogies  for  particular  details  in  the  structure  of  de- 
partments, which  might  after  all  really  require  to  be  founded  on 
different  fundamental  principles.  But  the  great  problem  to  be 

solved for  which  English  experience  ivas  of  no  value — was,  so  to 

parcel  out  those  portions  of  original  sovereignty,  which  the  people 
of  the  states  might  be  willing  to  withdraw  from  then-  state  insti- 
tutions, as  to  constitute  an  efficient  federal  republic,  w'hich  j'et 
ivould  not  control  , and  absorb  the  state  powers  that  might  be 
reserved.  But  to  comprehend  the  results  that  ivere  accomplished, 
and  to  understand  the  true  nature  of  the  system  bequeathed  to  us, 
it  is  indispensable  to  examine  in  detail  the  means  and  processes  by 
which  it  was  formed.  Before  we  turn,  however,  to  this  great  sub- 
ject, the  characters  of  the  principal  framers  of  the  Constitution 
demand  our  attention. 


CHAPTER  XVI, 

The  Fkamees  of  the  Constitution.— Washington,  President  op 

FiiE  Convention. 

The  nairative  to  Avhicli  the  reader  has  thus  far  attended  must 
HOW  be  interrupted  for  a while,  that  he  may  pause  upon  the  thresh- 
old of  an  assembly  which  had  been  summoned  to  the  grave  task  of 
remodelling  the  Constitution  of  this  country,  and  here  consider  the 
names  and  characters  of  the  men  to  whom  its  responsible  labors 
had  been  intrusted.  The  civil  deeds  of  statesmen  and  lawgivers, 
in  establishing  and  forming  institutions,  incorporating  principles 
into  the  forms  of  public  administration,  and  setting  up  Sie  defences 
of  public  security  and  prosperity,  are  far  less  apt  to  attract  and 
hold  the  attention  of  mankind  than  the  achievements  of  military 
life.  The  name,  indeed,  may  be  forever  associated  with  the  work 
of  the  hand,  but  the  mass  of  mankind  do  not  study,  admire,  or 
repeat  the  deeds  of  the  lawgiver  as  they  do  those  of  the  hero. 

1 et  he  who  has  framed  a law,  or  fashioned  an  institution  in  which 
some  great  idea  is  made  practical  to  the  conditions  of  human  exist- 
ence, has  exercised  the  highest  attributes  of  human  reason,  and  is 
to  be  counted  among  the  benefactors  of  his  race. 

The  framers  of  the  Constitution  of  the  United  States  assem- 
bled for  their  work  amid  difficulties  and  embarrassments  of  an 
extraordinary  nature.  No  general  concert  of  opinion  had  taken 
place  as  to  what  was  best,  or  even  as  to  what  was  possible  to  be 
done.  Whether  it  were  wise  to  hold  a convention,  whether  it 
were  even  legal  to  hold  it,  and  whether,  if  held,  it  would  be  likely 
to  result  in  anything  useful  to  the  countrjr,  were  points  upon 
which  the  most  opposite  opinions  prevailed  in  every  state  of  the 
Union.  But  it  was  among  the  really  fortunate,  although  apparent- 
y unhappy , circumstances  under  which  they  were  assembled,  that 
the  country  had  experienced  much  trial,  suffering,  distress,  and  fail- 
ure. It  has  been  a disagreeable  duty  to  describe  the  disasters  and 


258 


CONSTITUTIONAL  HISTORY. 


errors  of  s.  period  during  whicli  tlie  njitiontil  cliuructer  wus  sub- 
jected to  the  discipline  of  adversity.  We  now  come  to  the  period 
of  compensation  Avhich  such  discipline  inevitably  brings. 

There  is  a law  in  the  moral  government  of  the  universe,  which 
ordains  that  all  that  is  great  and  valuable  and  permanent  in  char- 
acter must  be  the  result,  not  of  theoretical  teaching,  or  natural 
aspiration— of  spontaneous  resolve,  or  uninterrupted  success— but 
of  trial,  of  suffering,  of  the  fiery  furnace  of  temptation,  of  the 
dark  hours  of  disappointment  and  defeat.  The  character  of  the 
man  is  distinguishable  from  the  character  of  the  child  that  he 
once  was,  chiefly  by  the  effects  of  this  universal  law.  There  are 
the  same  natural  impulses,  the  same  mental,  moral,  and  physical 
constitution  with  which  he  was  born  into  the  world.  What  is  it 
that  has  given  him  the  strength,  the  fortitude,  the  unchanging 
principle,  and  the  moral  and  intellectual  power  which  he  exhibits 
in  after-years?  It  has  not  been  constant  pleasure  and  success, 
nor  unmingled  joy.  It  has  been  the  hard  discipline  of  pain  and 
sorrow,  the  stern  teachings  of  experience,  the  struggle  against  the 
consequences  of  his  own  errors,  and  the  chastisement  inflicted  by 
his  own  faults. 

This  law  pertains  to  all  human  things.  It  is  as  clearly  trace- 
able  in  its  application  to  the  character  of  a people  as  to  that  of 
an  individual ; and  as  the  institutions  of  a people,  when  volunta- 
rily formed  by  them  out  of  the  circumstances  of  their  condition, 
are  necessarily  the  result  of  the  previous  discipline  and  the  past 
teachings  of  their  career,  we  can  trace  this  law  also  in  the  crea- 
tion and  growth  of  what  is  most  valuable  in  their  institutions. 
When  we  have  so  traced  it,  the  unalterable  relations  of  the  moral 
universe  entitle  us  to  look  for  the  elements  of  greatness  and 
strength  in  whatever  has  been  the  product  of  such  teachings,  such 
discipline,  and  such  trials. 

The  Constitution  of  the  United  States  was  eminently  the 
creature  of  circumstances ; not  of  circumstances  blindly  leading 
the  blind  to  an  unconscious  submission  to  an  accident,  but  of  cir- 
cumstances which  offered  an  intelligent  choice  of  the  means  of 
happiness,  and  opened,  from  the  experience  of  the  past,  the  plain 
path  of  duty  and  success,  stretching  onward  to  the  future.  A1 
that  has  been  said  in  the  previous  chapters  tends  to  illustrate  this 
fact.  We  have  seen  the  American  people— divided  into  separate 


FRAMERS  OF  THE  CONSTITUTION.  259 

and  isolated  comm  unities,  without  nationality,  except  such  as  re- 
sulted from  a general  community  of  origin — undertaking  together 
the  work  of  throwing  olf  the  domination  of  their  parent  state. 
AV"e  have  seen  them  enter  upon  this  undertaking  without  forming 
any  political  bond  of  a national  character,  and  without  instituting 
any  proper  national  agency.  We  have  seen  that  the  first  govern- 
ment which  they  created  was,  practically,  a mere  general  council 
for  the  recommendation  of  measures  to  be  adopted  and  executed 
by  the  several  constituencies  represented.  We  have  seen  no  ma- 
chinery instituted  for  the  accomplishment,  by  the  combined  au- 
thority of  these  separate  communities,  of  the  great  objects  at  which 
they  were  aiming;  and  although  in  theory  the  Revolutionary 
Congress  would  have  been  entitled  to  assume  and  exercise  the 
powers  necessary  to  accomplish  the  objects  for  which  it  was  as- 
sembled, we  have  seen  that  the  people  of  the  country,  from  a jeal- 
ous and  unreasonable  fear  of  all  power,  would  not  permit  this  to 
be  done. 

The  consequences  of  this  want  of  power  were  inevitable.  An 
army  could  not  be  kept  in  the  field,  on  a permanent  footing,  capa- 
ble of  holding  the  enemy  in  check.  The  city  of  ISTew  York  fell 
into  the  hands  of  that  enemy,  the  intermediate  country  between 
that  city  and  the  city  of  Philadelphia  was  overrun,  and  from  the 
latter  capital,  the  seat  of  the  general  government,  the  Congress 
was  obliged  to  fly  before  the  invading  foe. 

Taught  by  these  events  that  a more  effective  union  was  neces- 
sary to  the  deliverance  of  the  country  from  a foreign  yoke,  the 
states  at  length  united  in  the  establishment  of  a government,  the 
leading  purpose  of  which  was  mutual  defence  against  external  at- 
tacks, and  called  it  a Confederation.  But  its  powers  were  so  re- 
stricted, and  its  operations  so  clogged  and  impeded  by  state  jealous- 
ies and  state  reservations  of  power,  that  it  lacked  entirely  the  means 
of  providing  the  sinews  of  war  out  of  the  resources  of  the  country, 
and  was  driven  to  foreign  loans  and  foreign  arms  for  the  means  of 
bringing  that  war  to  a close.  A vast  load  of  debt  was  thus  accu- 
mulated upon  the  country ; and  as  soon  as  peace  was  established 
it  became  apparent  that,  while  the  Confederation  was  a govern- 
ment vnth  the  power  of  contracting  debts,  it  was  without  the 
power  of  paying  them.  This  incapacity  revealed  the  existence  of 
great  objects  of  government  Vvdthout  which  the  people  of  the  sev- 


260 


STITUTIONAL  HISTORY. 


eral  states  coiil  3ver  prosper,  and  which,  in  their  separate  ca- 
pacities, the  staters  themselves  could  never  accomplish. 

Now  it  is  as  certain  as  history  can  make  anything  that  the 
whole  period,  from  the  commencement  of  the  war  to  the  end  of 
the  Confederation,  was  a period  of  great  suffering  to  the  people  of 
the  United  States.  The  trials  and  hardships  of  war  were  succeed- 
ed by  the  greater  trials  and  hardships  of  a time  of  peace,  in  which 
the  whole  nation  experienced  that  greatest  of  all  social  evils,  the 
want  of  an  efficient  and  competent  government.  There  was  a 
gloom  upon  the  minds  of  men — a sense  of  insecurity — a conscious- 
ness that  American  society  was  not  fulfilling  the  ends  of  its  being 
by  the  development  of  its  resources  and  the  discharge  of  its  obli- 
gations— which  constituted  altogether  a discipline  and  a chastise- 
ment of  the  whole  nation,  and  which  we  are  not  at  liberty  to 
regard  as  the  mere  accidents  of  a world  ungoverned  by  an  over- 
ruling Power. 

It  was  from  the  midst  of  that  discipline  that  the  American 
people  came  to  the  high  undertaking  of  forming  for  themselves  a 
constitution,  by  which  to  work  out  the  destiny  of  social  life  in 
this  Western  World.  Had  they  essayed  their  task  after  years  of 
prosperity,  and  after  old  institutions  and  old  forms  of  government 
had,  upon  the  whole,  yielded  a fair  amount  of  success  and  happi- 
ness, they  would  have  wanted  that  power  which  comes  only  from 
failure  and  disappointment — the  power  to  adapt  the  best  remedy 
to  the  deepest  social  defects,  and  to  lay  hold  on  the  future  with 
the  strength  given  by  the  hard  teachings  of  the  past. 

Civil  liberty— American  liberty— that  liberty  which  resides  in 
law,  which  is  protected  by  great  institutions  and  upheld  by  the 
machinery  of  a popular  government — is  not  simply  the  product  of 
a desire,  or  a determination,  to  be  free.  Such  liberty  comes,  if  it 
comes  at  all,  only  alter  serious  mistakes — after  frightful  deficien- 
cies have  taught  men  that  power  must  be  lodged  somewhere.  It 
comes  when  a people  have  learned,  by  adversity  and  disappoint- 
ment, that  a total  negation  of  all  authority,  and  a jealousy  of  all 
restraint,  can  end  onh-  in  leaving  society  without  the  defences  and 
securities  which  nothing  but  law  can  raise  for  it.  It  comes  when 
the  passions  are  exhausted,  and  the  rivalries  of  opposing  interests 
have  worn  themselves  out,  in  the  vain  endeavor  to  reach  what 
reason  and  justice  and  self-sacrifice  alone  can  procure.  Then,  and 


FRAME  IIS  OF  THE  CONSTITUTION.  201 

then  only,  is  tlie  intellect  of  a nation  sure  to  oj)erate  with  the 
fidelity  and  energy  of  its  native  power.  Then  only  does  it  grasp 
the  j)rinciples  of  freedom  with  the  ability  to  incorporate  them  into 
the  practical  forms  of  a public  administration  whose  strength  and 
energy  shall  give  them  vitality,  and  prevent  their  diffusion  into 
the  vagueness  of  mere  abstractions,  which  return  to  society  the 
cold  and  mocking  gift  of  a stone  for  its  craving  demand  of  bread. 

The  Convention  was  a body  of  great  and  disinterested  men, 
competent,  both  morally  and  intellectually,  to  the  work  assigned 
them.  High  qualities  of  character  are  requisite  to  the  formation 
of  a system  of  government  for  a wide  country  with  different  inter- 
ests. Mere  talent  will  not  do  it.  Intellectual  power  and  ingenu- 
ity alone  cannot  compass  it. 

There  must  be  a moral  completeness  in  the  characters  of  those 
who  are  to  achieve  such  a work ; for  it  does  not  consist  solely  in 
devising  schemes,  or  creating  offices,  or  parcelling  out  jurisdictions 
and  powers.  There  must  be  adaptation,  adjustment  of  conflicting 
interests,  reconciliation  of  conflicting  claims.  There  must  be  the 
recognition  and  admission  of  great  expedients,  and  the  sacrifice, 
often,  of  darling  objects  of  ambition,  or  of  local  policy,  to  the  vast 
central  purpose  of  the  greatest  happiness  of  the  greatest  number. 
Hence  it  is,  that,  wherever  this  mighty  work  is  to  be  successfully 
accomplished,  there  must  be  a high  sense  of  justice ; a power  of 
concession  ; the  qualities  of  magnanimity  and  patriotism ; and  that 
broad  moral  sanity  of  the  intellect  which  is  furthest  removed  from 
fanaticism,  intolerance,  or  selfl.sh  adhesion  either  to  interest  or  to 
opinion. 

These  qualities  were  pre-eminently  displayed  by  many  of  the 
framers  of  the  Constitution.  There  was  certainly  a remarkable 
amount  of  talent  and  intellectual  power  in  that  body.  There 
Mere  men  in  that  assembly  whom,  for  genius  in  statesmanship, 
and  for  profound  speculation  in  all  that  relates  to  the  science  of 
government,  the  world  has  not  seen  overmatched. 

But  the  same  men  who  were  most  conspicuous  for  these  brill- 
iant gifts  and  acquirements,  for  their  profound  theories  and  their 
acute  perception  of  principles,  were  happily  the  most  marked,  in 
that  assembly,  for  their  comprehensive  patriotism,  their  justice, 
their  unselfishness  and  magnanimity.  Take,  for  instance,  Hamil- 


262 


c 


TITUTIONAL  HISTORY. 


ton.  \ Where,  an  all  the  speculative  philosophers  in  political 
science  whom  tl  . orld  has  seen,  shall  we  find  a man  of  greater 
acuteness  of  intellect,  or  more  capable  of  devising  a scheme  of 
government  which  should  appear  theoretically  perfect  Yet 
Hamilton’s  unquestionable  genius  for  political  disquisition  and 
construction  was  directed  and  restrained  by  a noble  generosity, 
and  an  unerring  perception  of  the  practicable  and  the  expedient, 
which  enabled  him  to  serve  mankind  without  attempting  to  force 
them  to  his  own  plans,  and  without  compelling  them  into  his  own 
views.  Take  AYashington,  whose  peculiar  greatness  was  a moral 
elevadiqinj^iich  secured  the  wisest  and  best  use  of  all  his  powers 
in  either  civil  or  military  life.  T^e  MaxII^n,  whoWeftaMy 
lacked  neither  ability  nor  inclination  for  speculative  inquiries,  and 
who  had  a mind  capable  of  enforcing  the  application  of  whatever 
principles  he  espoused.  Y et  his  calm  good  sense,  and  the  tact 
with  which  he  could  adapt  theory  to  practice,  were  no  less  among 
his  prominent  characteristics.  Take  Franklin,  who  sometimes 
held  extreme  opinions,  and  occasionally  pushed  his  peculiar  fan- 
cies, springing  from  an  excess  of  worldly  wisdom,  to  the  utmost 
verge  of  truth,  but  whose  intellect  was  tempered  and  whose  whole 
character  was  softened  by  the  wfide  and  varied  experience  of  a 
life  that  had  been  commenced  in  obscurity,  and  was  now  closing 
with  the  honors  of  a reputation  that  filled  the  Eastern  as  w^ell 
as  the  AYestern  Hemisphere.  Take  Gouverneur  Morris,  w^ho  was 
ardent,  impulsive,  and  not  disinclined  to  tenacity  of  opinion ; but 
he  rose  above  all  local  and  narrow  objects,  and  embraced,  in  the 
scope  of  his  clear  and  penetrating  vision,  the  happiness  and  wel- 
fare of  this  whole  continent. 

It  was  a most  fortunate  thing  for  America  that  the  Revolu- 
tionary age,  with  its  hardships,  its  trials,  and  its  mistakes,  had 
formed  a body  of  statesmen  capable  of  framing  for  it  a durable 
constitution.  The  leading  persons  in  the  Convention  which  formed 
the  Constitution  had  been  actors,  either  in  civil  or  military  life,  in 
the  scenes  of  the  Revolution.  In  those  scenes  their  characters  as 
American  statesmen  had  been  formed.  AYhen  the  condition  of 
the  counti;y  had  fully  revealed  the  incapacity  of  its  government 
to  provide  for  its  wants,  these  men  were  naturally  looked  to,  to 
construct  a system  which  should  save  it  from  anarchy.  And 
their  great  capacities,  their  high,  disinterested  purposes,  their  free- 


FKAMEUS  OF  THE  CONSTITUTION.  203 

(lorn  from  all  fanaticism  and  illiberality,  and  their  earnest,  uncon- 
querable faith  in  the  destiny  of  their  country,  enabled  them  to 
found  that  government  which  now  upholds  and  protects  the  whole 
fabric  of  liberty  in  the  states  of  this  Union. 

No  such  assembly,  in  that  or  in  any  other  age,  in  this  or 
in  any  other  country,  could  be  called  together  for  such  a pur- 
pose, without  exhibiting  a great  diversity  of  opinions,  wishes, 
and  views.  The  very  object  for  which  they  were  assembled  was 
of  a nature  to  develop,  to  the  fullest  extent,  the  most  conflicting 
opinions  and  the  most  opposite  theories.  That  object  v/as  to  de- 
vise a system  which  should  best  secure  the  permanent  liberty  and 
happiness  of  a vast  country.  What  subject,  in  the  whole  range  of 
human  thought  and  human  endeavor,  could  be  more  complex  than 
this  ? What  occasion,  among  all  the  diversities  of  human  affairs, 
could  present  a wider  field  for  honest  differences  of  opinion,  and 
for  severe  conflicts  of  mind  with  mind?  Yet  it  should  never  be 
forgotten,  as  the  merit  of  this  assembly,  that,  collectively  and  in-( 
dividually,  the}^  were  animated  by  the  most  pure  and  exclusive 
devotion  to  the  object  for  which  they  were  called  together.  It 
was  this  high  patriotism,  this  deep  and  never-ceasing  conscious- 
ness that  the  great  experiment  of  republican  liberty  turned  on  the 
result  of  their  labors,  as  on  the  hazard  of  a die,  that  brought  at 
last  all  conflicts  of  interest,  all  diversities  of  opinion  and  feeling, 
into  a focus  of  conciliation  and  unanimity.  More  than  once  the 
reader  will  find  them  on  the  point  of  separating  without  having 
accomplished  anything ; and  more  than  once  he  will  see  them  re- 
called to  their  mighty  task  by  the  eloquence  of  some  master- 
spirit, who  knew  how  to  touch  the  keynote  of  that  patriotic  feel- 
ing which  was  never  wholly  lost  in  the  jarring  discords  of  debate 
and  intellectual  strife.  For  four  months  the  laborious  effort  went 
on.  The  serene  and  unchanging  presence  of  Washington  presided 
over  all.  The  chivalrous  sincerity  and  disinterestedness  of  Hamil- 
ton pervaded  the  assembly  with  all  the  power  of  his  fascinating 
manners.  The  flashing  eloquence  of  Gouverneur  Morris  recalled 
the  dangers  of  anarchy,  which  must  be  accepted  as  the  alternative 
of  an  abortive  experiment.  The  calm,  clear,  statesmanlike  views 
of  Madison,  the  searching  and  profound  expositions  of  King,  the 
prudent  influence  of  Franklin,  at  length  ruled  the  hour. 

In  examining  their  work,  and  in  reading  all  that  is  left  to  us 


264 


CONSTITUTIONAL  HISTORY. 


of  their  discussions,  we  are  to  consider  the  materials  out  of  which 
they  had  to  frame  a system  of  republican  liberty,  and  the  point 
of  view,  in  reference  to  the  whole  subject,  at  which  they  stood. 
We  are  to  remember  how  little  the  Avorld  had  then  seen  of  real 
liberty  united  with  personal  safety  and  public  security ; and  how 
entirely  novel  the  undertaking  was,  to  form  a complete  system  of 
government,  wholly  independent  of  tradition,  exactly  defined  in  a 
written  constitution,  to  be  created  at  once,  and  at  once  set  in  mo- 
tion, for  the  accomplishment  of  the  great  objects  of  human  liberty 
and  social  progress.  The  examples  of  Greece  and  Koine,  the 
modern  republics  of  Italy,  the  federal  relations  of  the  Swiss  Can- 
tons, and  the  distant  approach  to  republicanism  that  had  been  seen 
in  Holland,  might  be  resorted  to  for  occasional  and  meagre  illus- 
trations of  a few  general  principles.  But,  unquestionably,  the 
country  which,  up  to  that  moment,  had  exhibited,  by  the  working 
of  its  government,  the  greatest  amount  of  liberty  combined  with 
the  greatest  public  security,  was  England.  England,  however, 
was  a monarchy  ; and  monarchy  was  the  system  which  they  both 
desired,  and  were  obliged,  to  avoid.  If  it  was  within  the  range  of 
^ human  possibility  to  establish  a system  of  republican  government 
which  would  fulfil  its  appropriate  duties  over  this  vast  and  rapidly 
extending  country,  that  they  felt,  one  and  all,  to  be  their  great 
task.  On  the  other  hand,  they  knew  that,  if  to  that  form  they 
could  not  succeed  in  giving  due  stability  and  wisdom,  it  would  be, 
in  the  words  of  Hamilton,  ‘‘  disgraced  and  lost  among  ourselves, 
disgraced  and  lost  to  mankind  forever.”  ‘ Here  was  their  trial— 
the  difficulty  of  ail  their  difficulties ; and  it  was  here  that  they 
exhibited  a wisdom,  a courage,  and  a capacity  which  have  been 
surpassed  by  no  other  body  of  lawgivers  ever  assembled  in  the 

Avorld. 

Their  country  had,  a few  years  before,  passed  through  a long 
and  distressing  war  Avith  its  parent  state.  The  yoke  of  her  dom- 
ination had  been  throAvn  off,  and  its  removal  Avas  naturally  fol- 
lowed by  a loosening  of  the  bands  of  all  authority,  and  an  indis- 
position to  all  new  restraints.  The  American  colonies  had  be- 
come independent  states ; and  as  the  spirit  of  liberty  Avhich  per- 
A^aded  them  made  individuals  impatient  of  control  in  their  political 


Madison’s  Debates  in  the  Federal  Convention.  Elliot,  V.  244. 


THE  FRAMERS  OF  THE  CONSTITUTION.  205 

relations,  so  the  states  reflected  the  same  spirit  in  their  corporate 
conduct,  and  looked  with  jealousy  and  distrust  upon  all  powers 
which  were  not  to  be  exercised  by  themselves.  Yet  it  was  clear 
that  there  were  powers  and  functions  of  government  which,  for 
the  absolute  safety  of  the  country,  must  be  withdrawn  from  the 
states  and  vested  in  some  national  head,  which  should  hold  and 
exercise  them  in  the  name  of  the  whole,  for  the  good  of  the  whole. 
Tlie  great  question  was,  what  that  national  head  was  to  be ; and 
the  great  service  performed  by  the  framers  of  the  Constitution 
consisted  in  devising  a system  by  which'  a national  sovereignty 
might  be  endowed  with  energy,  dignity,  and  power,  and  the  forms 
and  substance  of  popular  liberty  still  be  preserved ; a system  by 
Avhich  a supreme  authority  in  all  the  matters  which  it  touched 
might  be  created,  resting  directly  on  the  popular  will,  and  to  be 
exercised,  in  ail  coming  time,  through  forms  and  institutions  under 
which  that  will  should  have  a direct  and  perpetual  and  perpetu- 
ally renewed  expression.  This  they  accomplished.  They  accom- 
plished it,  too,  without  abolishing  the  state  governments,  and  with- 
out impairing  a single  personal  right  which  existed  before  they 
began  their  work.  They  accomplished  it  without  violence ; with- 
out the  disruption  of  a single  fibre  in  that  whole  delicate  tissue  of 
which  society  is  made  up.  iN’o  drop  of  blood  was  shed  to  establish 
this  government,  the  work  of  their  hands , and  no  moment  of  in- 
terruption occurred  to  the  calm,  even  tenor  of  the  pursuits  of  men 
—the  daily  on-goings  of  society,  in  which  the  stream  of  human 
life  and  happiness  and  progress  flows  on  in  beneficence  and  peace. 

First  upon  the  list  of  those  who  had  been  called  together  for 
this  great  purpose,  we  are  to  mention  him  without  whose  presence 
and  countenance  all  men  felt  that  no  attempt  to  meliorate  the 
political  condition  of  the  country  could  succeed. 

I have  already  given  an  account  of  the  proceedings  which  led 
directly  to  the  calling  of  the  Convention;  and  have  mentioned 
the  interesting  fact  that  the  impulse  to  those  proceedings  was 
given  at  Mount  Yernon.  Thither  Washington  had  retired  at  the 
close  of  the  war,  with  no  thought  of  ever  engaging  again  in  pub- 
lic affairs.  He  supposed  that  for  him  the  scene  was  closed. 

“ The  noontide  of  life,”  said  he,  in  a letter  to  the  Marchioness  de 
Lafayette,  ‘^is  now  past,  with  Mrs.  Washington  and  myself;  and 


/ 


200  CONSTITUTIONAL  HISTORY. 

all  we  have  to  do  is  to  glide  gently  down  a stream  which  no  human 
effort  can  ascend.”  ‘ 

But  wise  and  far-seeing  as  he  was,  he  did  not  foresee  how  soon 
he  was  to  be  called  from  that  grave  and  sweet  tranquillity.  He 
was  busy  with  the  concerns  of  his  farm ; he  was  tasting  the  hap- 
piness of  home,  from  which  he  had  been  absent  nine  long  years , 
he  was  cultivating  the  affections  of  good  men,  and  practising  the 
domestic  virtues.”  But  it  was  not  in  his  nature  to  be  inattentive 
to  the  concerns  of  that  country  for  whose  welfare  he  had  labored 
and  suffered  so  much.  He  maintained  an  active  correspondence 
with  several  of  the  most  eminent  and  virtuous  of  his  compatriots 
in  different  parts  of  the  Union;  and  in  that  correspondence,  run- 
ning through  the  years  1784, 1785,  and  1786,  there  exists  the  most 
ample  evidence  of  the  downward  tendency  of  things,  and  of  the 
fears  it  excited. 

It  had  become  evident  to  him  that  we  never  should  establish  a 
national  character,  nor  be  justly  considered  and  respected  by  the 
nations  of  Europe,  without  enlarging  the  powers  of  the  federal 
government  for  the  regulation  of  commerce.  The  objection 
which  had  been  hitherto  urged,  that  some  states  might  be  more 
W benefited  than  others  by  a commercial  regulation,  seemed  to  him 
to  apply  to  every  matter  of  general  utility.  ‘‘We  are,”  said  he, 
writing  in  the  summer  of  1785,  “ either  a united  people  under  one 
head,  and  for  federal  purposes,  or  we  are  thirteen  independent 
sovereignties  eternally  counteracting  each  other.  If  the  former, 
whatever  such  a majority  of  the  states  as  the  Constitution  points 
out  conceives  to  be  for  the  benefit  of  the  whole,  should,  in  my 
humble  opinion,  be  submitted  to  by  the  minority.  Let  the  South- 
ern States  always  be  represented ; let  them  act  more  in  union  ; 
let  them  declare  freely  and  boldly  what  is  for  the  interest  of.  and 
what  is  prejudicial  to,  their  constituents ; and  there  will,  there 
must  be,  an  accommodating  spirit.  In  the  establishment  of  a navi- 
gation act,  this,  in  a particular  manner,  ought  and  will  doubtless 
be  attended  to.  If  the  assent  of  nine  states,  or,  as  some  propose, 
of  eleven,  is  necessary  to  give  validity  to  a commercial  system,  it 
insures  this  measure,  or  it  cannot  be  obtained. 

“ Wherein,  then,  lies  the  danger  ? But  if  your  fears  are  in  dan- 


1 Washington’s  Writings,  IX.  166. 


THE  FRAMERS  OF  THE  C ON  S T I T U T I O N. 


207 

‘‘•er  of  being  realized,  cannot  certain  ])rovisos  in  the  ordinance 
guard  against  the  evil  ? I see  no  difficulty  in  this,  if  the  Southern 
delegates  would  give  their  attendance  in  Congress,  and  follow  the 
example,  if  it  should  be  set  them,  of  adhering  together  to  counter- 
act combination.  1 confess  to  you,  candidly,  that  I can  foresee  no 
evil  greater  than  disunion ; than  those  unreasonable  jealousies  (I 
say  u/vreasonahle.,  because  I would  have  proper  jealousy  always 
awake,  and  the  United  States  on  the  watch  to  prevent  individual 
states  from  infracting  the  Constitution  with  impunity)  which  are 
continually  poisoning  our  minds  and  filling  them  with  imaginary 
evils  for  the  prevention  of  real  ones.” ' 

But,  while  he  desired  to  see  the  ninth  article  of  the  Confedera- 
tion so  amended  and  extended  as  to  give  adequate  commercial 
po^^  ers,  he  feared  that  it  would  be  of  little  avail  to  give  them  to 
the  existing  Congress.  The  members  of  that  body  seemed  to  him 
to  be  so  much  afraid  of  exerting  the  powers  which  they  already 
possessed  that  they  lost  no  opportunity  of  surrendering  them  or 
of  referring  their  exercise  to  the  individual  states.  The  specula- 
tive question,  whether  foreign  commerce  is  of  any  real  advantage 
to  a country,  he  regarded  as  of  no  importance,  convinced  that  the 
spirit  of  trade  which  pervaded  these  states  was  not  to  be  restrained. 
It  behooved  us,  therefore,  to  establish  just  principles  of  commer- 
cial regulation,  and  this  could  not,  any  more  than  other  matters  of 
national  concern,  be  done  by  thirteen  heads  differently  constructed 
and  organized.  The  necessity,  in  fact,  of  a controlling  power  was 
obvious,  and  why  it  should  be  withheld  was,  he  declared,  beyond 
his  comprehension.  With  these  views  he  looked  to  the  Conven- 
tion at  Annapolis  as  likely  to’  result  in  a plan  which  would  give  to 
the  federal  government  efficient  pov/ers  for  all  commercial  pur- 
poses, although  he  regretted  that  more  objects  had  not  been  em- 
braced in  the  project  for  the  meeting. 

I he  failure  of  this  attempt  to  enlarge  the  commercial  powers 
of  Congress,  and  the  recommendation  of  a general  convention 
made  by  the  Annapolis  commissioners,  placed  the  country  in  an 
extremely  delicate  situation.  Washington  thought,  when  this 
recommendation  was  announced,  that  the  people  were  not  then 
sufficiently  misled  to  retract  their  error,  and  entertained  some 


'■  AVashingtoiTs  Writings,  IX.  121. 


208  CONSTITUTIONAL  HISTORY. 

doubt  as  to  the  consequences  of  an  attempt  to  revise  and  amend 
the  Articles  of  Confederation.  Something,  however,  must  be  done, 
he  said,  or  the  fabric,  which  was  certainly  tottering,  would  inevi- 
tably fall.  “ I think,”  said  he,  ‘‘  often  of  our  situation,  and  view  it 
Avith  concern.  From  the  high  ground  we  stood  upon,  from  the 
plain  path  Avhich  invited  our  footsteps,  to  be  so  fallen,  so  lost,  is 
really  mortifying;  but  virtue,  I fear,  has  in  a great  degree  taken 
its  departure  from  our  land,  and  the  AA^ant  of  a disposition  to  do 
justice  is  the  source  of  the  national  embarrassments ; for,  what- 
ever guise  or  color  is  given  to  them,  this  I apprehend  is  the  origin 
of  the  evils  Ave  now  feel,  and  probably  shall  labor  under  for  some 
time  yet.”  ‘ 

At  this  time  the  legislature  of  Virginia  Avere  acting  upon  the 
subject  of  a delegation  to  the  Federal  Convention,  and  a general 
Avish  Avas  felt  to  place  Washington  at  the  head  of  it.  Vo  opposi- 
tion had  been  made  in  that  body  to  the  bill  introduced  for  the 
purpose  of  organizing  and  instructing  such  a delegation,  and  it 
Avas  thought  advisable  to  give  the  proceeding  all  the  Aveight  Avhich 
could  be  derived  from  a single  state.  To  a private  intimation  of 
this  desire  of  the  legislature  he  returned  a decided  refusal.  SeA^- 
eral  obstacles  appeared  to  him  to  put  his  attendance  out  of  the 
question.  The  principal  reason  that  he  assigned  Avas,  that  he  had 
already  declined  a re-election  as  President  of  the  Society  of  Cin- 
cinnati, and  had  signified  that  he  should  not  attend  their  triennial 
general  meeting,  to  be  held  in  Philadelphia  in  the  same  month 
Avith  the  convention.^  He  felt  a great  reluctance  to  do  anything 
Avhich  might  give  offence  to  those  patriotic  men,  the  officers  of  the 
army  AAdio  had  shared  A\dth  him  the  labors  and  dangers  of  the 
Avar.  He  had  declined  to  act  longer  Avith  that  society  because  the 
motives  and  objects  of  its  founders  had  been  misconceived  and 
misrepresented.  Originally  a charitable  institution,  it  had  come 
to  be  regarded  as  anti-republican  in  its  spirit  and  tendencies.  De- 
siring, on  the  one  hand,  to  avoid  the  charge  of  deserting  the  offi- 
cers Avho  had  nobly  supported  him,  and  had  always  treated  him 
Avith  the  greatest  attention  and  attachment ; and  Avishing,  on  the 
other  hand,  not  to  be  thought  Avilling  to  give  his  support  to  an  in- 
stitution generally  believed  incompatible  AA^ith  republican  princi- 


^ Washington’s  Writings,  IX.  167. 


Ibid.,  212. 


WASHINGTON. 


269 

])les— lie  liad  excused  Ids  attendance  upon  the  ground  of  the  neces- 
sity of  devoting  Jiimself  to  his  ]>rivate  concerns.  He  had,  in  truth, 
a great  reluctance  to  appear  again  upon  any  public  theatre.  IJis 
liealth  was  far  from  being  firm ; he  felt  the  need  and  coveted  tlie 
blessing  of  retirement  for  the  remainder  of  his  days ; and  although 
some  modifications  of  the  society  whose  first  president  he  had 
been  were  then  allaying  the  jealousies  it  had  excited,  he  with- 
drew from  this,  the  last  relation  which  had  kept  him  in  a con- 
spicuous public  position. 

But  Washington  at  Mount  Vernon,  cultivating  his  estate,  and 
rarely  leaving  his  own  farms,  was  as  conspicuous  to  the  country 
as  if  he  tvere  still  placed  in  the  most  active  and  important  public 
stations.  fUl  eyes  were  turned  to  him  in  this  emergency;  all 
thoughts  were  employed  in  considering  whether  his  countenance 
and  his  influence  would  be  given  to  this  attempt  to  create  a na- 
tional government  for  the  states  whose  liberties  he  had  won. 
Ilis  friends  represented  to  him  that  the  posture  of  public  affairs 
ivould  prevent  any  criticism  on  the  situation  in  which  the  con- 
temporary meeting  of  the  Cincinnati  would  place  him,  if  he  were 
to  accept  a seat  in  the  Convention.  Still,  when  the  official  notice 
of  his  appointment  came,  in  December,  he  formally  declined,  but 
was  requested  by  the  governor  of  the  state  to  reserve  his  decis- 
ion.' At  this  moment  the  insurrection  in  Massachusetts  broke 
upon  him  like  a thunderbolt.  “ What,  gracious  God !”  he  ex-  < 
claimed,  “ is  man,  that  there  should  be  such  inconsistency  and  per- 
fidiousness in  his  conduct ! It  was  but  the  other  day  that  we 
were  shedding  our  blood  to  obtain  the  constitutions  under  which 

"e  ii'’6  constitutions  of  our  own  choice  and  making and 

now  we  are  unsheathing  the  sword  to  overturn  them  ! The  thing 
is  so  unaccountable  that  I hardly  know  how  to  realize  it,  or  to 
jiersuade  myself  that  I am  not  under  the  illusion  of  a dream.”  ’ 

It  was  clear  that,  in  case  of  civil  discord  and  open  confusion 
extending  through  any  considerable  part  of  the  country,  he  would 
be  obliged  to  take  part  on  one  side  or  the  other,  or  to  withdraw 
from  the  continent ; and  he,  as  well  as  other  reflecting  men,  were 
not  without  fears  that  the  disturbances  in  the  Eastern  States 
might  extend  throughout  the  Union.  lie  consulted  ivith  his 


' Wasliiiigtoii's  Writings,  IX.  219. 


Ibid.,  221. 


270  CONSTITUTIONAL  HISTORY. 

friends  in  distant  parts  of  the  countr}^,  and  requested  their  advice, 
but  still,  as  late  as  February,  hesitated  whether  he  should  attend 
the  Convention.  In  that  month  he  heard  of  the  suppression  of 
the  rebellion  in  Massachusetts;  but  the  developments  which  it 
had  made  of  the  state  of  society,  the  necessity  which  it  had  re- 
vealed for  more  coercive  power  in  the  institutions  of  the  country, 
and  the  fear  which  it  had  excited  that  this  want  might  lead  men’s 
minds  to  entertain  the  idea  of  monarchical  government,  finally 
decided  him  to  accept  the  appointment.  The  possibility  that  his 
absence  at  such  a juncture  might  be  construed  into  what  he  called 
^^a  dereliction  of  republicanism,”  seems  to  have  influenced  his  de- 
cision more  than  all  other  reasons.  Congress,  it  is  true,  had  now 
sanctioned  the  Convention,  and  this  had  removed  one  obstacle 
which  had  weighed  with  him  and  with  others.  He  entertained 
great  doubts  as  to  the  result  of  the  experiment,  but  Avas  entirely 
satisfied  that  it  ought  to  be  tried.' 

He  left  Mount  Vernon  in  the  latter  part  of  April.  Public 
honors  attended  him  everyAvhere  on  his  route.  At  Chester,  fif- 
teen miles  from  the  city  of  Philadelphia,  he  was  met  by  the 
Speaker  of  the  Assembly  of  Pennsylvania  and  several  officers  and 
gentlemen  of  distinction,  Avho  accompanied  him  to  Gray’s  Ferry, 
Avhere  a military  escort  was  in  Avaiting  to  receive  him  and  conduct 
him  into  the  city.  On  his  arrival  he  immediately  paid  a Ausit  to 
Dr.  Franklin,  at  Hiat  time  President  of  the  State  of  Pennsylvania." 

On  the  assembling  of  the  Convention,  Eobert  Morris,  by  the 
instruction  and  in  behalf  of  the  deputation  of  Pennsylvania,  pro- 
posed that  General  Washington  should  be  elected  president.  J ohn 
Eutledge  of  South  Carolina  seconded  this  suggestion,  observing 
that  the  presence  of  General  Washington  forbade  any  observa- 
tions on  the  occasion  Avhich  might  otherwise  be  proper."  His 
opinions,  at  the  time  AAdien  he  took  the  chair  of  the  Convention,  as 
to  AAEat  AA"as  proper  to  be  done,  and  Avhat  AA^as  practicable,  can 
only  be  gathered  from  his  correspondence.  He  had  formed  some 
general  vieAVS  of  the  principles  on  Avhich  a national  government 
should  be  framed,  but  he  had  not  proceeded  at  all  to  the  consider- 


' AVasliington’s  Writings,  IX.  236. 

^ Sparks’s  Life  of  Wasliington,  p.  435. 
^ Madison’s  Debates,  Elliot,  V.  123. 


WASHINGTON. 


271 

ation  of  details.  TIio  first  and  most  important  object  lie  hold  to 
be,  to  establish  such  a constitution  as  would  secure  and  perpetuate 
tlie  repuMjcan^  form  of  government,  by  .satisfying  the  wants  of 
the  country  and  the  time,  and  thus  checking  all  tendency  to  mo- 
narchical ideas.  lie  had  come  to  the  Convention,  as  we  have  seen, 
m order  that  the  great  experiment  of  self-government,  on  which 
tliis  country  had  entered  at  the  Revolution,  might  have  a further 
trial  beyond  the  hazards  of  the  hour.  He  knew— he  had  had  oc- 
casion to  know — that  the  thought  of  a monarchy,  as  being  neces- 
sary to  the  safety  of  the  country,  had  been  to  some  extent  enter- 
tained. There  had  been  those  in  a former  da3',  in  the  darkest 
period  of  the  war,  who  had  proposed  to  hm  to  assume  a crown- 
men  who  could  possibly  have  bestowed  it  upon  him,  or  have  as- 
sisted him  to  acquire  it— but  who  met  a rebuke  which  the  nature 
of  their  proposition  and  his  character  should  have  taught  them  to 
expect.  There  were  those  in  that  day  who  sincerely  despaired  of 
republican  liberty,  and  who  had  allowed  themselves  to  think  that 
some  of  the  royal  families  of  possibly  furnish  a 

sovereign  fitted  to  govern  and  i^jol  the  turbulent  elements  of 
our  political  condition.  AVashington  understood  the  genius  and 
character  of  the  people  of  this  country  so  well  that  he  held  it  to 
be  impossible  ever  to  establish  that  form  of  government  over  them 
without  the  deepest  social  convulsions.  It  was  the  form  of  the 
government  against  which  they  had  waged  a seven  years’  war; 
and  it  was  certain  that,  apart  from  all  questions  of  theoretical  fit- ' 
ness  or  value,  nothing  but  the  most  frightful  civil  disorders,  men- 
acing the  very  existence  of  society  itself,  could  ever  brine-  them 
again  under  its  sway.  y ® 

He  was  also  satisfied  that,  whatever  particular  system  was  to 
be  adopted,  it  must  be  one  that  would  create  a national  sover-  \J 
eignty  and  give  it  the  means  of  coercion.  What  the  nature”  of 
that  coercion  ought  to  be  he  had  not  considered ; but  that  obedi- 
ence to  the  ordinances  of  a general  government  could  not  be  ex- 
pected, unless  it  was  clothed  with  the  power  of  enforcing  them 
all  his  experience  during  the  war,  and  all  his  observation  since’ 
ad  fully  satisfied  him.  He  was  convinced,  also,  that  powers  of  a 
more  extensive  nature,  and  which  would  comprehend  other  ob- 
jects, ought  to  be  given  to  the  general  government;  that  Con-  / 
gress  should  be  so  placed  as  to  enable  and  compel  them  to  exert  ^ 


CONSTITUTIONAL  HISTOKY. 


1 


272 


their  constitutional  authority  with  a firm  and  steady  hand,  in- 
stead of  referring  it  back  to  the  states.  He  proposed  to  adopt 
no  teinpQrizjng  expedients,  but  to  have  the  defects  of  the  Confed- 
eration thoroughly  examined  and  displayed,  and  a radical  cure 
provided,  whether  it  were  accepted  or  not.  A course  of  this  kind, 
he  said,  would  stamp  wisdom  and  dignity  on  their  proceedings, 
and  hold  up  a light  which  sooner  or  later  would  have  its  influence.' 

Persuaded  that  the  primary  cause  of  all  the  public  disorders 
lay  in  the  different  state  governments,  and  in  the  tenacity  Vvdth 
which  they  adhered  to  their  state  powers,  he  saw  that  incompati- 
bility in  the  laws  of  different  states  and  disrespect  to  the  author- 
ity of  the  Union  must  continue  to  render  the  situation  of  the 
country  weak,  inefficient,  and  disgraceful.  The  principle  with 
which  he  entered  the  Convention,  and  on  which  he  acted  through- 
-out to  the  end,  was,  ‘‘(^vith  a due  consideration  of  circumstances 
and  habits,  to  form  such  a government  as  will  bear  the  scrutiniz- 
ing eye  of  criticism,  and  trust  it  to  the  good  sense  and  patriotism 
of  the  people  to  carry  it  into  effect.’^ 

The  character  of  AUashington  as  a statesman  has,  perhaps, 
been  somewhat  undervalued,  from  two  causes  : one  of  them  being 
his  military  reputation,  and  the  other  the  extraordinary  balance 
of  his  mind,  which  presented  no  brilliant  and  few  salient  qualities. 
Undoubtedly,  as  a statesman  he  was  not  constructive,  like  Hamil- 
ton, nor  did  he  possess  the  same  abundant  and  ever-ready  re- 
sources. He  was  eminently  cautious,  but  he  was  also  eminently 
sagacious.  He  had  had  a\vide  field  of  observation  during  the 
Avar,  the  theatre  of  Avhich,  commencing  in  UeAV  England,  had  ex- 
tended through  the  Middle  and  into  the  Southern  States.  He  had, 
of  course,  been  brought  in  contact  Avith  the  men  and  the  institutions 
of  all  the  states,  and  had  been  concerned  in  their  conflicts  AVith 
the  federal  authority,  to  a greater  extent  than  any  other  public 
man  of  the  time.  This  experience  had  not  prepared  him— as  the 
character  of  his  mind  had  not  prepared  him— to  suggest  plans  or 
frame  institutions  fitted  to  remedy  the  evils  he  had  observed,  and 
to  apply  the  principles  which  he  had  discovered.  But  it  had  re- 
A^ealed  to  him  the  dangers  and  difficulties  of  our  situation,  and  had 
made  him  a national  statesman  as  incapable  of  confining  his  poli- 


Wasliington’s  Writings,  IX.  250. 


2 Ibid.,  258. 


II  A M I L T O N. 


273 


tics  to  the  narrow  scale  of  local  interests  and  attachments  as  he 
had  been  of  conlining  his  exertions  to  the  object  of  achieving  the 
liberties  of  a single  state. 

lie  would  have  been  fitly  placed  in  tlie  chair  of  any  delibera- 
tive assembly  into  which  he  might  have  been  called  at  any  period 
of  his  life,  but  it  was  pre-eminently  suitable  that  he  should  occu- 
py that  of  the  Convention  for  forming  the  Constitution.  He  had 
no  talent  for  debate,  and  upon  the  floor  of  this  body  he  would 
have  exerted  less  influence,  and  have  been  far  less  the  central  ob- 
ject towards  which  the  opinions  and  views  of  the  members  were 
directed,  than  he  was  in  the  high  and  becoming  position  to  which 
he  was  now  called. 

Hext  to  the  august  name  of  the  president  should  be  men- 
tioned Alexander  Hamilton. 

This  eminent  person  was,  for  one  or  two  generations  after  his 
death,  probably  less  well  known  to  the  nation  than  most  of  the 
leading  statesmen  of  the  Kevolution.  There  were  causes  for  this 
in  his  history.  He  never  attained  to  that  high  office  which  has 
conferred  celebrity  on  inferior  men.  The  political  party  of  which 
he  was  one  of  the  founders  and  one  of  the  chief  leaders  became 
unpopular  with  the  great  body  of  his  countrymen  before  it  was 
extinct.  His  death,  too,  at  the  early  age  of  forty-seven,  while  it 
did  not  leave  an  unfinished  character,  left  an  unfinished  career 
for  the  contemplation  of  posterity.  In  this  respect  his  fate  was  , 
unlike  that  of  nearly  all  his  most  distinguished  contempora- 
ries. Washington,  Adams,  Jefferson,  Madison,  Jay,  and,  in  fact, 
almost  all  the  prominent  statesmen  of  the  Eevolution,  died  in  old 
age  or  in  advanced  life,  and  after  the  circle  of  their  public  honors 
and  usefulness  had  been  completed.  Hamilton  was  cut  off  at  a 
period  of  life  when  he  may  be  said  to  have  had  above  a third  of 
its  best  activity  yet  before  him ; and  this  is  doubtless  one  cause 
why  so  little  was  popularly  known  of  him  by  subsequent  gen- 
erations. 

It  was  known,  indeed,  traditionally,  what  a thrill  of  horror— 
what  a sharp,  terrible  pang — ran  through  the  nation,  proving  the 
comprehension  by  the  entire  people  of  what  was  lost,  when  Aaron 
Burr  took  from  his  country  and  the  world  that  important  life. 

In  the  most  distant  extremities  of  the  Union  men  felt  that  one  of 
I— 18 

A 

4 


CONSTITUTIONAL  HISTORY. 


274 

the  first  intellects  of  the  age  had  been  extinguished.  From  the 
utmost  activity  and  public  consideration,  in  the  fulness  of  his 
strength  and  usefulness,  the  bullet  of  a duellist  had  taken  one  of 
the  first  statesmen  in  America;  a man  who,  while  he  had  not 
been  without  errors,  and  while  his  life  had  not  been  without  mis- 
takes, had  served  his  adopted  country,  from  his  boyhood  to  that 
hour  of  her  bitter  bereavement,  with  an  elevation  of  purpose  and 
a force  of  intellect  rarely  exceeded  in  her  history,  and  which 
had  caused  Washington  to  lean  upon  him  and  to  trust  him  as  he 
trusted  and  leaned  upon  no  other  man,  from  first  to  last.  The 
death  of  such  a man,  under  such  circumstances,  cast  a deep  gloom 
over  the  face  of  society ; and  Hamilton  was  mourned  by  his  con- 
temporaries with  a sorrow  founded  on  a just  appreciation  of  his 
greatness,  and  of  what  they  owed  to  his  intellect  and  character. 
But  by  the  generations  that  succeeded  he  was  less  intimately 
known  than  many  of  his  compatriots,  who  lived  longer,  and 
reached  stations  which  he  never  occupied. 

He  was  born  in  the  island  of  Hevis  in  the  year  1757,  his  mother 
being  a native  of  that  island  and  his  father  being  a Scotchman. 
At  tlie  age  of  fifteen,  after  having  been  for  three  years  in  the 
counting-house  of  a merchant  at  Santa  Cruz,  he  was  sent  to  Hew 
York  to  complete  his  education,  and  was  entered  as  a private  stu- 
dent in  King’s  (now  Columbia)  College.  At  the  age  of  seventeen 
his.  political  life  was  already  begun ; for  at  that  age,  and  while 
still  at  college,  he  wrote  and  published  a series  of  essays  on  the 
Eights  of  the  Colonies  which  attracted  the  attention  of  thenvhole 
country.  These  essays  appeared  in  1774,  in  answer  to  certain 
pamphlets  on  the  Tory  side  of  the  controversy,  and  in  them  Ham- 
ilton reviewed  and  vindicated  the  whole  of  the  proceedings  of  the 
first  Continental  Congress.  There  are  displayed  in  these  papers 
a power  of  reasoning  and  sarcasm,  a knowledge  of  the  principles 
of  government  and  of  the  English  Constitution,  and  a grasp  of 
the  merits  of  the  whole  controversy,  that  would  have  done  honor 
to  any  man  at  any  age,  and  in  a youth  of  seventeen  are  wonder- 
ful. To  say  that  they  evince  precocity  of  intellect  gives  no  idea 
of  their  main  characteristics.  They  show  great  maturity  a more 
remarkable  maturity  than  has  ever  been  exhibited  by  any  other 
person,  at  so  early  an  age,  in  the  same  department  of  thought. 
They  produced,  too,  a great  effect.  Their  influence  in  bringing 


II A M 1 1.  T O N. 


275 


the  public  iiiind  to  tlic  point  of  resistance  to  the  mother  country 
was  important  and  extensive. 

J^efore  he  was  nineteen  years  old  Hamilton  entered  tlie  army 
as  a captain  of  artillery,  and  when  only  twenty,  in  1777,  he  was 
selected  by  Washington  to  be  one  of  his  aides-de-camp,  with  tlie 
rank  of  lieutenant-colonel.  In  this  capacity  he  served  until  1782, 
when  he  was  elected  a member  of  Congress  from  the  state  of 
Hew  1 ork  and  took  his  seat.  In  1786  he  was  chosen  a member 
of  the  legislature  of  Hew  York.  In  1787  he  Avas  appointed  as  a 
delegate  to  the  convention  which  framed  the  Constitution.  In 
the  following  year,  when  only  thirty  years  old,  he  published,  with 
Madison  and  Jay,  the  celebrated  essays  called  “The  Federalist,” 
m favor  of  the  form  of  government  proposed  by  the  Convention. 
In  1788  he  became  a member  of  the  state  convention  of  Hew 
York  called  to  ratify  the  Constitution,  and  it  Avas  chiefly  through 
his  influence  that  it  Avas  adopted  in  that  state.  In  1789  he  took 
office  in  Washington’s  administration  as  secretary  of  the  treas- 
ury. In  1795  he  retired  to  the  practice  of  the  laAv  in  the  city  of 
Hew  York.  In  1798,  at  Washington’s  absolute  demand,  he  was 
appointed  second  in  command  of  the  provisional  army,  raised  un- 
der the  elder  Adams’s  administration  to  repel  an  apprehended 
invasion  of  the  French.  On  the  death  of  Washington,  in  1799, 
he  succeeded  to  the  chief  command.  When  the  army  Avas  dis- 
banded he  again  returned  to  the  bar,  and  practised  Avith  great 
reputation  until  the  year  1804,  when  his  life  Avas  terminated  in  a 
duel  Avith  Colonel  Burr,  concerning  AAdiich  the  sole  blame  that  has 
ever  been  imputed  to  Hamilton  is  that  he  felt  constrained  to  ac- 
cept the  challenge. 

His  great  characteristic  was  his  profound  insight  into  the  prin- 
ciples of  government.  The  sagacity  with  which  he  comprehended 
all  systems,  and  the  thorough  knowledge  he  possessed  of  the 
Avorking  of  all  the  freer  institutions  of  ancient  and  modern  times, 
united  Avith  a singular  capacity  to  make  the  experience  of  the 
past  bear  on  the  actual  state  of  society,  rendered  him  one  of  the 
most  useful  statesmen  that  America  has  known.  WhateA'er  in 
the  science  of  government  had  already  been  ascertained ; Avhat- 
ever  the  civil  condition  of  mankind  in  any  age  had  made  practi- 
cable or  proved  abortive ; whatever  experience  had  demonstrated  ; 
Avhatever  the  passions,  the  interests,  or  the  Avants  of  men  had 


)C 


276 


CONSTITUTIONAL  HISTORY. 


mad  ritable— he  seemed  to  know  intuitively.  But  he  was  no 

tlieorisi.  llis  powers  were  all  eminently  practical.  He  detected 
the  vice  of  a theory  instantly,  and  shattered  it  with  a single  blow. 

Ilis  knowledge,  too,  of  the  existing  state  of  his  own  and  of 
other  countries  was  not  less  remarkable  than  his  knowledge  of  the 
past.  He  understood  America  as  thoroughly  as  the  wisest  of  his 
contemporaries,  and  he  comprehended  Europe  more  completely 
than  any  other  man  of  that  age  upon  this  continent.' 

To  these  characteristics  he  added  a clear,  logical  power  in 
statement,  a vigorous  reasoning,  a perfect  frankness  and  moral 
courage,  and  a lofty  disdain  of  all  the  arts  of  a demagogue.  His 
eloquence  was  distinguished  for  correctness  of  language  and  dis- 
tinctness of  utterance,  as  well  as  for  grace  and  dignity. 

In  theory  he  leaned  decidedly  to  the  Constitution  of  England 
as  the  best  form  of  civil  polity  for  the  attainment  of  the  great  ob- 
jects of  government.  But  he  was  not  on  that  account  less  a lover 
of  liberty  than  those  who  favored  more  popular  and  democratic 
institutions.  His  waitings  will  be  searched  in  vain  for  any  disre- 
gard of  the  natural  rights  of  mankind,  or  any  insensibility  to  the 
blessings  of  freedom.  It  was  because  he  believed  that  those  bless- 
ings can  be  best  secured  by  governments  in  which  a change  of 
rulers  is  not  of  frequent  occurrence  that  he  had  so  high  an  esti- 
mate of  the  English  Constitution.  "^At  the  period  of  the  Conven- 
tion he  held  that  the  chief  want  of  this  country  was  a government 
into  which  the  element  of  a permanent  tenure  of  office  could  be 
largely  infused ; and  he  read  in  the  Convention— as  an  illustration 
of  his  views,  but  wdthout  pressing  it — a plan  by  which  the  execu- 
tive and  the  Senate  could  hold  their  offices  during  good  behavior. 


* At  tlie  time  when  these  observations  concerning  Hamilton  were  first  pub- 
lished (1854)  Mr.  Ticknor  wrote  to  me  as  follows:  “One  day  in  January,  1819, 
talking  with  Prince  Talleyrand,  in  Paris,  about  his  visit  to  America,  he  expressed 
the  highest  admiration  of  Mr.  Hamilton,  saying,  among  other  things,  that  he 
had  known  nearly  all  tlie  marked  men  of  his  time,  but  that  he  had  never  known 
one,  on  the  whole,  equal  to  him.  I was  much  surprised  and  gratified  with  the 
remark;  but  still,  feeling  that,  as  an  American,  I was  in  some  sort  a party  con- 
cerned by  patriotism  in  the  compliment,  I answered  with  a little  reserve  that  the 
great  military  commanders  and  the  great  statesmen  of  Europe  had  dealt  with 
larger  masses  and  wider  interests  than  he  had.  ‘Mais,  monsieur/  the  piince 
instantly  replied,  ‘ Hamilton  avoit  devine  VEuropc.’” 


HAMILTON. 


277 

Bat  the  idea  wliicli  lias  sometimes  been  promulgated,  that  he  de- 
sired the  establishment  of  a monarchical  government  in  this  coun- 
try, is  without  foundation.  At  no  period  of  his  life  did  he  regard 
that  experiment  as  either  practicable  or  desirable. 

IJamilton’s  relation  to  the  Constitution  is  peculiar,  (ll^  had 
less  direct  agency  in  framing  its  chief  provisions  than  many  of 
the  other  principal  persons  who  sat  in  the  Convention,  and  some 
of  its  provisions  were  not  wholly  acceptable  to  him  when  fmmed.j 
But  the  history,  which  has  been  detailed  in  the  previous  chapters 
of  this  work,  of  the  progress  of  federal  ideas,  and  of  the  efforts 
to  introduce  and  establish  principles  tending  to  consolidate  the 
Union,  has  been  largely  occupied  with  the  recital  of  his  opinions, 
exertions,  and  prevalent  influence.  ^Beginning  with  the  year  1780, 
when  he  was  only  three-and-twenty  years  of  age,  and  when  he 
sketched  the  outline  of  a national  government  strongly  resem- 
bling the  one  which  the  Constitution  long  afterwards  established;) 
passing  through  the  term  of  his  service  in  Congress,  when  his  ad- 
mirable expositions  of  the  revenue  system,  the  commercial  power, 
and  the  ratio  of  contribution,  may  justly  be  said  to  have  saved  the 
Union  from  dissolution ; and  coming  down  to  the  time  when  he 
did  so  much  to  bring  about,  first,  the  meeting  at  Annapolis,  and 
then  the  general  and  final  Convention  of  all  the  states— the  whole 
period  is  marked  by  his  wisdom  and  filled  with  his  power.  He 
did  more  than  any  other  public  man  of  the  time  to  lessen  the  force 
of  state  attachments,  to  create  a national  feeling,  and  to  lead  the  • 
public  mind  to  a comprehension  of  the  necessity  for  an  efficient 
national  sovereignty. 

Indeed,  he  was  the  first  to  perceive  and  to  develop  the  idea  of 
a real  union  of  the  people  of  the  United  States.  To  him,  more 
than  to  any  one  else,  is  to  be  attributed  the  conviction  that  the 
people  of  the  different  states  were  competent  to  establish  a gen- 
eral government  by  their  own  direct  action ; and  that  this  mode 
of  proceeding  ought  to  be  considered  within  the  contemplation  of 
the  state  legislatures,  when  they  appointed  delegates  to  a conven- 
tion for  the  revision  and  amendment  of  the  existing  system.' 

The  age  in  which  he  lived,  and  the  very  extraordinary  early 
maturity  of  his  character,  naturally  remind  us  of  that  remarkable 


^ See  his  first  speech  in  the  Convention,  as  reported  by  Mr.  Madison. 


278 


CONSTITUTIONAL  HISTORY. 


person  Avho  was  two  years  his  junior,  and  who  became  prime-min- 
ister of  England  at  the  age  of  twenty-four.  The  younger  Pitt  en- 
tered public  life  with  almost  every  possible  advantage.  Inheriting 
a great  and  celebrated  name,”  * educated  expressly  for  the  career 
of  a statesman,  and  introduced  into  the  House  of  Commons  at  a 
moment  when  power  was  just  ready  to  drop  into  the  hands  of  any 
man  capable  of  wielding  it,  he  had  only  to  prove  himself  a brill- 
iant and  powerful  debater  in  order  to  become  the  ruler  of  an  em- 
pire whose  Constitution  had  been  settled  for  ages,  and  was  neces- 
sarily administered  by  the  successful  leaders  of  regular  parties  in 
its  legislative  body.  That  he  was  a most  eminent  parliamentary 
orator,  a consummate  tactician  and  leader  of  party,  a minister  of 
singular  energy,  and  a statesman  of  a very  high  order  of  mind 
and  character,  at  an  age  when  most  men  are  scarcely  beginning 
to  give  proofs  of  what  they  may  become — all  this  history  has  de- 
liberately and  finally  recorded.  What  place  it  may  assign  to  him 
among  the  statesmen  by  whose  lives  and  action  England  and  the 
world  have  been  materially  and  permanently  benefited  is  not  yet 
settled,  and  it  is  not  to  the  present  purpose  to  consider. 

The  theatre  in  which  Hamilton  appeared,  lived,  and  acted  was 
one  of  a character  so  totally  different  that  the  comparison  neces- 
sarily ends  with  the  contrast  which  it  immediately  suggests.  Like 
Pitt,  indeed,  he  seems  to  have  been  born  a statesman,  and  to  have 
had  ,110  such  youth  as  ordinarily  precedes  the  manhood  of  the 
mind.  But,  in  the  American  colonies,  no  political  system  of 
things  existed  that  was  fitted  to  train  liim  for  a career  of  useful- 
ness and  honor ; and  yet,  when  the  years  of  his  boyhood  were 
hardly  ended,  he  sprang  forth  into  the  troubled  affairs  of  the  time 
with  the  full  stature  of  a matured  and  well-furnished  statesman. 
He,  in  truth,  showed  himself  to  be  already  the  man  that  was  want- 
ed. Everything  was  in  an  unsettled  and  anxious  state — a state  of 
change  and  transition.  There  was  no  regular,  efficient  govern- 
ment. It  was  all  but  a state  of  civil  war,  and  the  more  clear- 
sighted saw  that  this  great  disaster  was  near  at  hand.  He  was 
compelled,  therefore,  to  mark  out  for  himself,  step  by  step,  begin- 
ning in  1774,  a system  of  political  principles  which  should  serve, 
not  to  administer  existing  institutions  with  wisdom  and  benefi- 


^ Burke,  speaking  of  Lord  Chatliam. 


HAMILTON. 


279 


cence,  but  to  create  institutions  able  to  unite  a people  divided  into 
thirteen  independent  sovereignties;  to  give  them  the  attitude  and 
ca})acity  of  an  independent  nation ; and  then  to  carry  them  on, 
Avith  constantly  increasing  prosperity  and  power,  to  their  just 
])lace  in  tlie  affairs  of  the  Avorld.  It  was  a great  Avorlc,  but  Ham- 
ilton Avas  equal  to  it.  He  was  by  nature,  by  careful  study,  and 
by  still  more  careful,  anxious,  and  earnest  thought,  eminently 
litted  to  detect  and  deA^elop  those  resources  of  poAver  and  prog- 
ress Avhich,  in  the  dark  condition  of  society  that  attends  and 
follows  an  exhausting  period  of  revolution,  lie  hidden,  like  gener- 
ous seeds,  until  some  strong  hand  disencumbers  them  of  the  soil 
Avith  Avhich  they  had  been  oppressed,  and  gives  them  opportunity 
to  germinate  and  bear  golden  fruit.  I ^ At  the  age  of  three-and- 
twenty  he  had  already  formed  Avell-deffned,  profound,  and  com- 
prehensive opinions  on  the  situation  and  Avants  of  these  states. 
He  had  clearly  discerned  the  practicability  of  forming  a confeder- 
ated government,  and  adapting  it  to  their  peculiar  condition,  re- 
sources, and  exigencies.  He  had  Avrought  out  for  himself  a politi- 
cal system,  far  in  advance  of  the  conceptions  of  his  contemporaries, 
and  one  Avhich,  in  the  hands  of  those  Avho  most  opposed  him  in 
life,  became,  Avhen  he  Avas  laid  in  a premature  grave,  the  basis  on 
Avhich  this  government  Avas  consolidated  ; on  which,  to  the  present 
day,  it  has  been  administered ; and  on  AAdiich  alone  it  can  safely 
rest  in  that  future  Avhich  seems  so  to  stretch  out  its  unending 
glories  before  us.  * 

Hamilton,  therefore,  I conceiA^e,  proved  himself  early  to  be  a 
statesman  of  greater  talent  and  poAver  than  the  celebrated  Eng- 
lish minister  Avhose  youthful  success  Avas  in  the  eyes  of  the  Avorld 
so  much  more  brilliant,  and  Avhose  early  death  Avas  no  less  dis- 
heartening ; for  none  can  doubt  that  to  build  up  a free  and  firm 
state  out  of  a condition  of  political  chaos,  and  to  give  it  a govern- 
ment capable  of  de\^eloping  the  resources  of  its  soil  and  people, 
and  of  insuring  to  it  prosperity,  poAver,  and  ’permanence,  is  a 
greater  AA^ork  than  to  administer  Avith  energy  and  success — eA^en 
in  periods  of  severe  trial— the  constitution  of  an  empire  Avhose 
principles  and  modes  of  action  haA^e  been  settled  for  centuries. 

Hamilton  Avas  one  of  those  statesmen  Avho  trust  to  the  efficacy 
of  the  press  for  the  advancement  and  inculcation  of  correct  prin-  J 
ciples  of  public  policy,  and  Avho  desire  to  accomplish  important 


280 


CONSTITUTIONAL  HISTORY. 


results  mainly  through  the  action  of  ah  enlightened  public  opin- 
ion. That  he  had  faith  in  the  intelligence  and  honesty  of  his 
countrymen  is  proved  by  the  numerous  writings  which  he  con- 
stantly addressed  to  their  reason  and  good  sense,  in  the  shape  of 
essays  or  letters,  from  the  beginning  to  the  end  of  his  career,  upon 
subjects  on  which  it  was  important  that  they  should  act  with  wis- 
dom and  principle. 

Ilis  own  opinions,  although  held  with  great  firmness,  were  also 
held  in  subordination  to  what  was  practicable.  It  was  the  rare 
felicity  of  his  temperament  to  be  able  to  accept  a less  good  than 
his  principles  might  have  led  him  to  insist  upon,  and  to  labor  for 
it,  when  nothing  better  could  be  obtained,  with  as  much  patriotic 
energy  and  zeal  as  if  it  had  been  the  best  result  of  his  own  views. 
The  Constitution  itself  remains,  in  this  particular,  a monument  of 
the  disinterestedness  of  his  character.  He  thought  it  had  great 
defects.  But  he  accepted  it,  as  the  best  government  that  the  wis- 
dom of  the  Convention  could  frame,  and  the  best  that  the  nation 
would  adopt.  In  this  spirit,  as  soon  as  it  was  promulgated  for 
the  acceptance  of  the  country,  he  came  forward  and  placed  him- 
self in  the  foremost  rank  of  its  advocates,  making  himself  one 
of  the  chief  of  its  authoritative  expounders.  He  was  very  ably 
assisted  in  the  Federalist  by  Madison  and  Jay ; but  it  was  from 
him  that  the  Federalist  chiefly  derived  the  weight  and  the  power 
which  carried  conviction  to  a large  body  of  intelligent  men  in  all 
parts  of  the  Union.  The  extraordinary  forecast  with  which  its 
luminous  discussions  anticipated  the  operation  of  the  new  institu- 
tions, and  its  profound  elucidation  of  their  principles,  gave  birth 
to  American  constitutional  law,  which  was  thus  placed  at  once 
above  the  field  of  arbitrary  constructions  and  in  the  domain  of 
legal  truth.  They  made  it  a science ; and  so  long  as  the  Consti- 
tution shall  exist,  they  will  continue  to  be  resorted  to  as  the  most 
important  sources  of  contemporaneous  interpretation  which  the 
annals  of  the  country  afford.' 


1 At  paijc  418  of  Volume  I.,  first  edition  of  the  present  volume,  I inserted  a 
note  on  the  various  editions  of  the  Federalist.  The  introduction  to  Mr.  Henry 
Cabot  Lodge’s  edition  of  the  Federalist  (Putnam,  New  York,  1888)  gives  an 
account  of  twenty-four  previous  editions,  and  contains  an  elaborate  and  critical 
examination  of  all  the  evidence  bearing  on  the  authorship  of  the  difierent  ]>apers. 
Mr.  Lodge’s  researches  have  been  so  exhaustive  that,  unless  further  evidence  shall 


HAMILTON. 


281 


In  the  two  paramount  characters  of  statesman  and  jurist,  in 
the  comprehensive  nature  of  his  patriotism,  in  his  freedom  from 
sectional  })rejudices,  in  his  services  to  the  Union,  and  in  the  kind 
and  magnitude  of  his  intellect,  posterity  will  recognize  a resem- 
blance to  Daniel  Webster,  who  has  been  to  the  Constitution,  in 
tlie  age  that  succeeded,  what  Hamilton  was  in  the  age  that  wit- 
nessed its  formation  and  establishment.  Without  the  one  of  these 
illustrious  men  the  Constitution  probably  would  never  have  ex- 
isted ; without  the  other,  it  might  have  become  a mere  record  of 
past  institutions,  whose  history  had  been  glorious  until  faction 
and  civil  discord  had  turned  it  into  a record  of  mournful  recol- 
lections. 

The  following  sentences,  written  by  Hamilton  soon  after  the 
adjournment  of  the  Convention,  contain  a clew  to  all  his  conduct 
in  support  of  the  plan  of  government  which  that  body  recom- 
mended : “ It  may  be  in  me  a defect  of  political  fortitude,  but  I 
acknowledge  that  I cannot  feel  an  equal  tranquillity  with  those 
who  affect  to  treat  the  dangers  of  a longer  continuance  in  our 
present  situation  as  imaginary.  A nation  without  a national  gov- 
ernment is  an  awful  spectacle.  The  establishment  of  a constitu- 

be  discovered  hereafter,  changing  ins  conclusions,  they  must  be  considered  as 
final.  Out  of  the  total  number  of  the  essays  (eighty-five),  he  assigns  fifty-one 
to  Hamilton,  five  to  Jay,  fourteen  to  Madison,  and  three  to  Hamilton  and  Madi- 
son jointly.  The  twelve  remaining  numbers  he  considers  doubtful,  but  two 
of  them,  numbers  62  and  63,  he  thinks  belong  to  Hamilton.  He  comes  to  * 
no  confident  conclusion  respecting  the  remaining  ten,  but  leaves  them  in 
doubt;  although  he  thinks  they  were  certainly  written  by  either  Hamilton  or 
Madison.  The  essays  being  first  i^rinted  in  the  newspapers  as  they  were  written, 
the  first  edition  in  book  form  (McLean,  1788)  adopted  substantially  the  same 
text.  Subsequent  editions  made  changes  in  the  text.  Mr.  Henry  B.  Dawson, 
in  his  edition  (the  22d),  published  in  1863,  restored  the  original  text;  and  by  an 
argument  whicli  Mr.  Lodge  considers  “unanswerable,”  Mr.  Dawson  vindicated 
the  propriety  of  this  resort  to  the  text  as  tlie  essays  were  first  published.  Mr. 
Lodge  follows  the  text  which  Mr.  Dawson  had  thus  restored.  I suggested  more 
than  thirty  years  ago,  that  as  the  Federalist  was  an  argument  addressed  to  the 
people,  to  convince  them  that  the  Constitution  ought  to  be  adopted,  the  text 
should  be  given  as  it  was  first  published.  But  as  I wrote  long  before  Mr.  Daw- 
son’s edition  was  published,  and  had  only  the  Gideon  edition  of  1818, 1 had  not 
the  benefit  of  the  restored  text.  I am  not  aware,  however,  that  I quoted  any 
passages  which  had  been  corrupted,  or  that  I assigned  the  authorship  of  any 
essay  to  the  wrong  person. 


CONSTITUTIONAL  HISTORY. 


282 

tion^  in  a time  of  profound  peace,  by  the  voluntary  consent  of  a 
whole  people,  is  a prodigy,  to  the  completion  of  which  I look  for- 
ward with  trembling  anxiety.” 

From  Hamilton  we  naturally  turn  to  his  associate  in  the  Fed- 
eralist— James  Madison,  afterwards  fourth  President  of  the  United 
States,  whose  faithful  and  laborious  record  has  preserved  to  us 
the  debates  of  the  Convention. 

Mr.  Madison  was  thirty -six  years  old  when  he  entered  that 
assembly.  Ilis  previous  life  had  fitted  him  to  play  a conspicuous 
and  important  part  in  its  proceedings.  He  was  born  in  1751,  of 
a good  family,  in  Orange  County,  Virginia,  and  was  educated  at 
Princeton  College  in  New  Jersey,  where  he  took  the  degree  of 
Bachelor  of  Arts  in  1772.  He  returned  to  Virginia  in  the  spring 
of  1773,  and  commenced  the  usual  studies  preparatory  to  an  ad- 
mission to  the  bar ; but  the  disputes  between  the  colonies  and 
the  mother  country  soon  drew  him  into  public  life.  In  1776  he 
became  a member  of  the  State  Convention  which  formed  the  first 
Constitution  of  Virginia.  He  was  afterwards  a member  of  the 
legislature  and  of  the  Council  of  the  State,  until  he  was  appointed 
one  of  its  delegates  in  Congress,  where  he  took  his  seat  in  March, 
1780.^ 

From  this  time  to  the  assembling  of  the  Federal  Convention 
in  1787,  his  services  to  the  Union  were  of  the  most  important 
character.  He  entered  Congress  without  a national  reputation, 
but  with  national  views.  Indeed,  it  may  be  said  of  him  that  he 
came  from  his  native  commonwealth — ‘‘mother  of  great  men 
grown  to  the  proportions  of  a continental  statesman.  At  the 
moment  when  he  appeared  upon  the  larger  theatre  of  the  national 
interests,  the  Articles  of  Confederation  had  not  been  finally  lati- 
fied  by  all  the  states.  Maryland  had  insisted,  as  a necessary  con- 
dition of  her  accession  to  the  new  Confederacy,  that  the  great 
states  should  surrender  to  the  Union  their  immense  claims  to  the 
unoccupied  territories  of  the  West;  Virginia  had  remonstrated 
against  this  demand ; and  the  whole  scheme  of  the  Confederation 
had  thus  been  long  encountered  by  an  apparently  insurmountable 


1 Article  ‘"Madison”  in  the  Penny  Encyclopsedia,  written  for  that  work  by 
Professor  George  Tucker  of  the  University  of  Virginia. 


MADISON. 


283 


obstacle.'  The  generous  e.xample  of  New  York,  wlioso  western 
claims  were  ceded  to  the  United  States  in  the  month  preceding 
TMr.  Ifadison’s  entry  into  Congress,  had  furnished  to  the  advocates 
of  tlio  Ihiion  the  means  for  a powerful  ajtpeal  to  botli  sides  of 
this  critical  anil  delicate  controversy ; but  it  required  great  tact, 
discretjon,  and  address  to  make  that  appeal  effectual,  by  inducing 
Maryland  to  trust  to  the  influence  of  this  example  upon  Virginia, 
and  by  inducing  Virginia  to  make  a cession  that  would  be  satis- 
factory to  Maryland.  In  this  high  effort  of  statesmanship — a 
domestic  diplomacy  full  of  difficulties— Mr.  Madison  took  jjart. 
He  did  not  prepare  the  very  skilful  report  which,  while  it  aimed 
to  produce  cessions  of  their  territorial  claims  by  the  larger  states, 
appealed  to  Maryland  to  anticipate  the  result;"  but  the  vast  con- 
cession by  which  Virginia  yielded  the  Northwestern  Territory  to 
the  Union  was  afterwards  brought  about  mainly  by  his  exertions. 

In  1782  he  united  with  Hamilton  in  the  celebrated  report  pre- 
pared by  the  latter  upon  the  refusal  of  the  state  of  Khode  Island 
to  comply  with  the  recommendations  of  Congress  for  a duty  on 
imports." 

In  1783  he  was  named  first  upon  a committee  with  Ellsworth 
and  Hamilton,  to  prepare  an  address  to  the  states,  urging  the 
adoption  of  the  revenue  system  which  has  been  described  in  a 
previous  chapter,  and  the  address  was  written  by  him.*  The 
great  abdity  and  high  tone  of  this  paper  gave  it  a striking  effect. 
The  object  of  this  plan  of  revenue  Avas,  as  Ave  have  seen,  to  fund  ' 
the  national  debts,  and  to  make  a sufficient  provision  for  their 
discharge.  I have  already  assigned  to  it  the  merit  of  having  pre- 
served the  Union  from  the  premature  decay  that  had  begun  to 
destroy  its  vitality  ;*  and  it  may  here  be  added  that  the  statesman 
Avhose  pen  could  produce  the  comprehensive  and  poAverful  appeal 
by  which  it  was  pressed  upon  the  states  was  certain  to  become 
one  of  the  chief  founders  of  the  Constitution  of  which  the  plan 
Itself  was  the  forerunner.  It  settled  the  fact  that  a national 
unity  m dealing  with  the  debts  of  the  Eevolution  was  “ necessary 
to  render  its  fruits  a full  reiAmrd  for  the  blood,  the  toils,  the  cares, 
and  the  calamities  Avhich  had  purchased  them.” 


1 Ante,  pp.  90-97. 

' Ante,  pp.  117,  139-141. 


“ It  was  drawn  by  James  Duane  of  New  York. 

^ Ante,  pp,  118,  119.  ^ ^iqte,pp.  117, 124-126. 


284 


CONSTITUTIONAL  IIISTORY. 


Such  were  Mr.  Madison’s  most  important  services  in  the 
Congress  of  the  Confederation;  but  they  are,  of  course,  not  the 
whole.  A member  so  able  and  of  such  broad  and  national 
views  must  have  had  a large  agency  in  every  important  trans- 
action ; and  accordingly  the  Journals,  during  the  whole  period 
of  his  service,  bear  ample  testimony  to  his  activity,  his  influence, 
and  his  zeal. 

At  the  close  of  the  war  he  retired  to  Virginia,  and  during  the 
three  following  years  was  a member  of  the  legislature,  still  occu- 
pied, however,  with  the  interests  of  the  Union.  Jlis  attention  was 
specially  directed  to  the  subject  of  enlarging  the  powers  of  Con- 
gress over  the  foreign  trade  of  the  country.  It  is  a striking 
fact,  and  a proof  of  the  comprehensive  character  of  Mr.  Madi- 
son’s statesmanship,  that  Virginia,  a state  not  largely  commercial, 
should  have  taken  so  prominent  a part  in  the  efforts  to  give  the 
control  of  commerce  to  the  general  government ; an  object  which 
has  justly  been  regarde(Ta^he  corner-stone  of  the  Constitution. 
It  arose  partly  from  the  accident  of  her  geographical  position, 
which  made  it  necessary  for  her  to  aim  at  something  like  uni- 
formity of  regulation  with  the  other  states  which  bordered  upon 
her  contiguous  waters ; but  it  is  also  to  be  attributed  to  the  en- 
lightened liberality  and  forecast  of  her  great  men,  who  saw  in  the 
immediate  necessities  of  their  own  state  the  occasion  for  a meas- 
ure of  general  advantage  to  the  country. 

f Mr.  Madison’s  first  effort  was,  to  procure  a declaration  by  the 
legislature  of  Virginia  of  the  necessity  for  a uniform  regulation 
of  the  commerce  of  the  states  by  the  federal  authority,  'yhor  this 
purpose  he  introduced  into  the  legislature  a series  of  propositions, 
intended  to  instruct  the  delegates  of  the  state  in  Congress  to 
propose  a recommendation  to  the  states  to  confer  upon  Congiess 
power  to  regulate  their  trade  and  to  collect  a revenue  from  such 
regulation.  This  measure,  as  we  have  seen,  encountered  the  oppo- 
sition of  those  who  preferred  a temporary  to  a perpetual  and  irrev- 
ocable grant  of  such  power ; and  the  ])ropositions  wews  so  much 
changed  in  the  Committee  of  the  Whole  that  they  were  no  longei 
acceptable  to  their  original  friends.^  The  steps  which  finally  led 
the  legislature  of  Virginia  to  recommend  a general  convention 
of  all  the  states  have  been  detailed  in  a previous  chapter  of  this 
work ; but  it  is  due  to  Mr.  Madison’s  connection  with  this  move- 


MADISON. 


285 

inent,  tliat  they  should  here  be  recapitulated  with  reference  to  his 
])crsonal  agency  in  the  various  transactions. 

A conflict  of  jurisdiction  between  the  two  states  of  Virginia 
and  Maryland  over  the  waters  which  separated  them  had,  in  the 
spring  of  1785,  led  to  the  appointment  of  commissioners  on  the 
j)art  of  each  state,  who  met  at  Alexandria  in  March.  These  com- 
missioners, of  whom  Mr.  Madison  was  one,  made  a visit  to  Wash- 
ington at  Mount  Vernon,  and  it  was  there  proposed  that  the  two 
states,  whose  conflicting  regulations,  ever  since  the  peace,  had 
])roduced  great  inconvenience  to  their  merchants,  and  had  been  a 
constant  source  of  irritation,  should  be  recommended  by  the  com- 
missioners to  make  a compact  for  the  regulation  of  their  impost 
and  foreign  trade.  Mr.  Madison  has  left  no  written  claim,  that  I 
am  aware  of,  to  the  authorship  of  this  suggestion,  but  there  exists 
evidence  of  his  having  claimed  it  in  conversation/  The  recom- 
mendation was  made  by  the  commissioners,  and  their  report  was 
adopted  by  both  states  — by  Virginia  unconditionally,  and  bv 
]\raryland  with  the  qualification  that  the  states  of  Delaware  and 
Pennsylvania  should  be  invited  to  unite  in  the  plan. 

After  the  commercial  propositions  introduced  by  Mr.  Madison 
had  lam  on  the  table  for  some  time  as  a report  from  the  Commit- 
tee of  the  Whole,  the  report  of  the  Alexandria  commissioners  was 
received  and  ratified  by  the  legislature  of  Virginia.  Althou^^h 


■ In  preparing  the  note  to  page  230  (ante),  I refrained  from  attributing  to 
Wasliington  tlie  suggestion  of  tlie  enlarged  plan  recommended  by  tlie  Alexan- 
dria commissioners,  although  it  was  concerted  at  his  house,  because  there  is  no 
evidence,  beyond  that  fact,  of  his  having  proposed  this  enlargement  of  the  plan. 
Since  that  note  was  printed  I have  learned  in  a direct  manner  that  Mr.  Madison 
laid  stated  to  the  Hon.  Edward  Coles,  formerly  his  private  secretary  and  after- 
wards governor  of  Illinois,  that  he  (Mr.  Madison)  first  suggested  it.  In  assign- 
ing, therefore,  to  the  difierent  individuals  who  took  a prominent  part  in  the 
measures  which  led  to  the  foianation  of  the  Constitution,  the  various  suggestions 
winch  had  an  important  influence  upon  the  course  of  events— a curious  and  in- 
teresting inquiry-I  consider  that  to  Mr.  Madison  belongs  the  credit  of  hav- 
ing originated  that  series  of  Virginia  measures  which  brought  about  the  meet- 
ing of  commissioners  of  all  the  states  at  Annapolis,  for  the  purpose  of  enlarg- 
ing the  powers  of  Congress  over  commerce ; white  Hamilton  is  to  be  consid- 
ered the  author  of  the  plan  in  which  the  Convention  at  Annapolis  was  mero-ed 

for  an  entire  revision  of  the  federal  system  aird  the  formation  of  a new  constitu- 
tion. 


286 


CONSTITUTIONAL  HISTORY. 


the  friends  of  those  propositions  were  gradually  increasing,  Mr. 
Madison  had  no  expectation  that  a majority  could  be  obtained  in 
favor  of  a grant  of  commercial  powers  to  Congress  for  a longer 
term  than  twenty-five  years.  The  idea  of  a general  convention 
of  delegates  from  all  the  states,  which  had  been  for  some  time 
familiar  to  Mr.  Madison’s  mind,  then  suggested  itself  to  him,  and 
he  prepared  and  caused  to  be  introduced  the  resolution  which  led 
to  the  wieeting  that  afterwards  took  place  at  Annapolis,  for  the 
purpose  of  digesting  and  reporting  the  requisite  augmentation  of 
the  powers  of  Congress  over  trade.'  His  resolution,  he  says,  be- 
ing, on  the  last  day  of  the  session,  the  alternative  of  adjourning 
without  any  effort  for  the  crisis  in  the  affairs  of  the  Union,  ob- 
tained a general  vote ; less,  however,  with  some  of  its  friends, 
from  a confidence  in  the  success  of  the  experiment,  than  from  a 
hope  that  it  might  prove  a step  to  a more  comprehensive  and  ad- 
equate provision  for  the  wants  of  the  Confederacy.'' 

Mr.  Madison  was  appointed  one  of  the  commissioners  of  Vir- 
ginia to  the  meeting  at  Annapolis.  There  he  met  Hamilton,  who 
came  meditating  nothing  less  than  the  general  revision  of  the 
whole  system  of  the  Federal  Union,  and  the  formation  of  a new 
government.  Mr.  Madison,  although  less  confident  than  the  great 
statesman  of  Hew  York  as  to  the  measures  that  ought  to  be 
taken,  had  yet  for  several  years  been  equally  convinced  that  the 
perpetuity  and  efficacy  of  the  existing  system  could  not  be  con- 
fided in.  He  therefore  concurred  readily  in  the  report  recom- 
mending a general  convention  of  all  the  states ; and  when  that 
report  was  received  in  the  legislature  of  Virginia,  he  became  the 
author  of  the  celebrated  act  which  passed  that  body  on  the  4th  of 
December,  1786,  and  under  which  the  first  appointment  of  dele- 
gates to  the  Convention  was  made.  It  ivas  chiefly  through  his 
exertions,  combined  with  the  influence  of  Governor  Eandolph, 
that  Washington’s  name  was  placed  at  the  head  of  the  delegation, 

* The  resolve  was  introduced  by  Mr.  T}ler,  father  of  President  Tylei,  a pci- 
son  of  much  influence  in  the  legislature,  and  who  had  never  been  in  Congress. 
Although  prepared  by  IVIr.  Madison,  it  was  not  offered  by  him,  for  the  reason 
that  a great  jealousy  was  felt  against  those  who  had  been  in  the  federal  coun- 
cils, and  because  he  was  known  to  wish  for  an  enlargement  of  the  powers  of 
Congress.  See  Madison’s  Introduction  to  the  Convention,  Elliot,  V.  113. 

Ibid.,  p.  114. 


MADISON. 


287 

and  tliat  ho  was  induced  to  accept  tlie  ap])ointment.  Mr.  Madi- 
son liiniself  was  tlie  fourth  member  of  tlie  delegation. 

In  the  convention  his  labors  must  have  been  far  more  arduous 
than  those  of  any  other  member  of  the  body.  He  took  a leading 
])art  in  the  debates,  speaking  upon  every  important  question  ; and 
in  addition  to  all  the  usual  duties  devolving  upon  a person  of  so 
much  ability  and  influence,  he  preserved  a full  and  careful  record 
of  the  discussions  with  his  own  hand.  Impressed,  as  he  says, 
with  the  magnitude  of  the  trust  confided  to  the  Convention,  and 
foreseeing  the  interest  that  must  attach  to  an  authentic  exhibi- 
tion of  the  objects,  the  opinions,  and  the  reasonings  from  which 
the  new  system  of  government  was  to  receive  its  peculiar  struct- 
ure and  organization,  he  devoted  the  hours  of  the  night  succeed- 
ing the  session  of  each  day  to  the  preparation  of  the  record  with 
which  his  name  is  imperishably  associated.  “ Nor  was  I,”  he 
added,  unaware  of  the  value  of  such  a contribution  to  the  fund 
of  materials  for  a Constitution  on  which  would  be  staked  the  hap- 
piness of  a people,  great  even  in  its  infancy,  and  possibly  the  cause 
of  liberty  throughout  the  world.” ' 

As  a statesman  he  is  to  be  ranked,  by  a long  interval,  after 
Hamilton ; but  he  was  a man  of  eminent  talent,  always  free  from 
local  prejudices,  and  sincerely  studious  of  the  welfare  of  the  Avhole 
country.  His  perception  of  the  principles  essential  to  the  contin- 
uance of  the  Union  and  to  the  safety  and  prosperity  of  the  states, 
TV  as  accurate  and  clear.  His  studies  had  made  him  familiar  with 
the  examples  of  ancient  and  modern  liberty,  and  he  had  carefully 
reflected  upon  the  nature  of  the  government  necessary  to  be  es- 
tablished. He  vv’^as  one  of  the  few  persons  who  carried  into  the 
Convention  a conviction  that  an  amendment  of  the  Articles  of 
Confederation  would  not  answer  the  exigencies  of  the  time.  He 
regarded  an  individual  independence  of  the  states  as  irreconcilable 
with  an  aggregate  sovereignty  of  the  whole,  but  admitted  that  a 
consolidation  of  the  states  into  a simple  republic  was  both  im- 
practicable and  inexpedient.  He  sought,  therefore,  for  some  mid- 
dle ground  which  would  at  once  support  a due  supremacy  of  the 
national  authority  and  leave  the  local  authorities  in  force  for  their 
subordinate  objects. 


^ Introduction  to  the  Debates,  EHiot,  V.  121. 


CONSTITUTIONAL  IIISTORYo 


288 

/ For  this  purpose  he  conceived  that  a system  of  representation 
which  would  operate  without  the  intervention  of  the  states  was 
indispensable;  that  the  national  government  should  be  armed 
with  a positive  and  complete  authority  in  all  cases  where  a uni- 
formity of  measures  was  necessary,  as  in  matters  of  trade,  and 
that  it  should  have  a negative  upon  the  legislative  acts  of  the 
states,  as  the  crown  of  England  had  before  the  Kevolution.  He 
thought,  also,  that  the  national  supremacy  should  be  extended  to 
the  judiciary,  and  foresaw  the  necessity  for  national  tribunals,  in 
cases  in  which  foreigners  and  citizens  of  different  states  might  be 
concerned,  and  also  for  the  exercise  of  the  admiralty  jurisdiction. 
He  considered  two  branches  of  the  legislature,  with  distinct  ori- 
gins, as  indispensable ; recognized  the  necessity  for  a national 
executive,  and  favored  a council  of  revision  of  the  laws,  in  which 
should  be  included  the  great  ministerial  officers  of  the  govern- 
ment. He  saw,  also,  that  to  give  the  new  system  its  proper 
energy,  it  would  be  necessary  to  have  it  ratified  by  the  authority 
of  the  people,  and  not  merely  by  that  of  the  legislatures.' 

Such  was  the  outline  of  the  project  wdiich  he  had  formed  be- 
fore the  assembling  of  the  Convention.  How  far  his  views  Avere 
modified  by  the  discussions  in  which  he  took  part  will  be  seen 
hereafter.  As  a speaker  in  a deliberative  assembly,  the  successive 
schools  in  which  he  had  been  trained  had  given  him  a habit  of 
self-possession  which  placed  all  his  resources  at  his  command. 
''  Never  Avandering  from  his  subject,”  says  Mr.  J efferson,  “ into 
vain  declamation,  but  pursuiug  it  closely,  in  language  pure,  classi- 
cal, and  copious,  soothing  always  the  feelings  of  his  adversaries  by 
civilities  and  softness  of  expression,  he  rose  to  the  eminent  station 
Avhich  he  held  in  the  great  national  Convention  of  1787 ; and  in  that 
of  Virginia  Avhich  folloAved  he  sustained  the  neAV  Constitution  in 
all  its  parts,  bearing  off  the  palm  against  the  logic  of  George 
Mason  and  the  fervid  declamation  of  Mr.  Henry.  "With  these 
consummate  poAAmrs  AAmre  united  a pure  and  spotless  Aurtue,  which 
no  calumny  has  ever  attempted  to  sully.” " 

Mr.  Madison’s  greatest  service  in  the  national  Convention  con- 
sisted in  the  answers  Avhich  he  made  to  the  objections  of  a Avant 


* Letter  to  Edmund  Randolph,  dated  New  York,  x\pril  8th,  1787. 
2 Jetfersou’s  Autobiog-raphy,  Works,  I.  41,  edition  of  1853. 


MADISON. 


289 


of  power  in  that  asseml)!}^  to  frame  and  propose  a new  constitu- 
tion, and  Ids  paper  on  tins  subject  in  the  Federalist  is  one  of  the 
ablest  in  the  series. 

It  will  be  necessary  for  me  hereafter  to  examine  those  points 
on  which  the  two  ])rincipal  writers  of  the  Federalist  became  sepa- 
rated from  each  other,  ^\dlen  the  administration  of  the  government 
led  to  the  formation  of  the  first  parties  known  in  our  political 
history.'  But  it  may  here  be  said  of  them  that,  upon  almost  all 


1 The  following  extract  from  an  autograph  letter  of  Mr.  Madison,  hitherto 
unpublished,  which  lies  before  me,  written  after  the  adoption  of  the  Constitu- 
tion, shows  very  clearly  that  he  concurred  with  Plamilton  in  the  opinion  that 
the  strongest  government  consistent  with  the  republican  form  was  necessary  in 
the  situation  of  this  country.  The  letter  is  dated  at  Pliiladelphia,  December 
10th,  1788,  and  is  addressed  to  Philip  Mazzei,  at  Paris. 

“Your  book,  as  I prophesied,  sells  nowhere  but  in  Virginia;  a very  few 
copies  only  have  been  called  for,  either  in  New  York  or  in  this  city.  The  lan- 
guage in  which  it  is  written  will  account  for  it.  In  order  to  attract  notice,  I 
translated  the  panegyric  in  tlie  French  Mercure,  and  had  it  made  part  of  the 
advertisement.  I did  not  translate  the  comment  on  the  Federal  Constitution,  as 
you  wished,  because  I could  not  spare  the  time,  as  well  as  because  I did  not  ap- 
prove the  tendency  of  it.  Some  of  your  remarks  prove  that  Horace’s  ‘ Mum 
non  animum  mutant  qui  trans  mare  currunt^  does  not  hold  without  exception. 
In  Europe,  the  abuses  of  power  continually  before  your  eyes  have  given  a bias 
to  your  political  reflections  which  you  did  not  feel  in  equal  degree  when  you 
left  America,  and  which  you  would  feel  less  of  if  you  had  remained  in  America.  ' 
Philosophers  on  the  old  continent,  in  their  zeal  against  tyranny  would  rush  into 
anarchy ; as  the  horrors  of  superstition  drive  them  into  atheism.  Here,  perhaps, 
the  inconveniences  of  relaxed  government  have  reconciled  too  many  to  the  op- 
posite extreme.  If  your  plan  of  a single  legislature,  as  in  Pennsylvania,  etc., 
were  adopted,  I sincerely  believe  that  it  would  prove  the  most  deadly  blow  ever 
given  to  republicanism.  Were  I an  enemy  to  that  foi-m,  I would  preach  tlie  very 
doctrines  which  are  preached  by  the  enemies  of  the  government  proposed  for 
the  United  States.  Many  of  our  best  citizens  are  disgusted  with  the  injustice, 
instability,  and  folly  which  characterize  the  American  administrations.  The 
number  has  for  some  time  been  rapidly  increasing.  Were  the  evils  to  be  much 
longer  protracted,  the  disgust  would  seize  citizens  of  every  description. 

It  is  of  infinite  importance  to  the  cause  of  liberty  to  ascertain  the  degree 
of  it  which  will  consist  with  the  purposes  of  society.  An  error  on  one  side  may 
be  as  fatal  as  on  the  other.  Hitherto,  the  error  in  the  United  States  has  lain  in 
the  excess. 

“ All  the  states,  except  North  Carolina  and  Rhode  Island,  have  ratified  the 
proposed  Constitution.  Seven  of  them  have  appointed  their  senators,  of  wdiom 

L— 19 


290 


CONSTITUTIONAL  HISTORY. 


the  great  questions  that  arose  before  the  Constitution  was  finally 
adopted,  the  single  purpose  of  establishing  a system  as  efficient  as 
the  theory  of  a purely  republican  government  would  admit  was 
the  object  of  their  efforts  ; and  that,  although  they  may  have  dif- 
fered with  regard  to  the  details  and  methods  through  which  this 
object  was  to  be  reached,  the  purpose  at  which  they  both  aimed 
places  them  at  the  head  of  those  founders  of  our  government 
towards  whom  the  gratitude  of  the  succeeding  generations  of 
America  must  be  forever  directed. 

Y' 

^ The  convention  was  graced  and  honored  by  the  venerable 
presence  of  Dr.  Franklin,  then  President  of  the  State  of  Pennsyl- 
vania, and  in  his  eighty-second  year.  He  had  returned  from  Eu- 
rope only  two  years  before,  followed  by  the  admiration  and  hom- 
age of  the  social,  literary,  and  scientific  circles  of  France ; laden 
with  honors,  which  he  wore  with  a plain  and  shrewd  simplicity ; 
and  in  the  full  possession  of  that  predominating  common-sense 
which  had  given  him,  through  a long  life,  a widely  extended  rep- 
utation of  a peculiar  character.  The  oldest  of  the  public  men  of 
America,  his  political  life  had  embraced  a period  of  more  than 
half  a century,  extending  back  to  a time  when  independence  had 
not  entered  into  the  dreams  of  the  boldest  among  the  inhabitants 
of  the  English  colonies.  For  more  than  twenty  years  before  the 
Kevolution  commenced,  he  had  held  a high  and  responsible  office 


tliose  of  Virginia,  R.  H.  Lee  and  Colonel  Grayson,  alone  are  among  the  oppo- 
nents of  the  system.  The  appointments  of  Maryland,  South  Carolina,  and 
Georgia  will  pretty  certainly  be  of  the  same  stamp  with  the  majority.  The 
House  of  Representatives  is  yet  to  be  chosen,  everywhere  except  in  Pennsyl- 
vania. From  the  partial  returns  received,  the  election  will  wear  a federal  as- 
pect unless  the  event  in  one  or  two  particular  counties  should  contradict  every 
calculation.  If  the  eight  members  from  this  state  be  on  the  side  of  the  Consti- 
tution, it  will  in  a manner  secure  the  majority  in  that  branch  of  the  Congress 
also.  The  object  of  the  anti-Federalists  is  to  bring  about  another  general  con- 
vention, which  would  either  agree  on  nothing,  as  would  be  agreeable  to  some, 
and  throw  everything  into  confusion,  or  expunge  from  the  Constitution  parts 
which  are  held  by  its  friends  to  be  essential  to  it.  The  latter  party  are  willing 
to  gratify  their  opponents  with  every  supplemental  provision  for  general  rights, 
but  insis't  that  this  can  be  better  done  in  the  mode  provided  for  amendments. 

“ I remain,  with  great  sincerity,  your  friend  and  servant, 

“ Jas.  Madison,  Jr.” 


FRANKLIN. 


291 


under  the  crown,  the  administration  of  which  affected  the  inter- 
course and  connection  of  all  the  colonies  5*  ^and  more  than  twenty 
years  before  the  first  Continental  Congress  was  assembled,  he  had 
projected  a plan  of  union  for  the  thirteen  provinces  which  then 
embraced  the  whole  of  the  British  dominions  in  North  America,  j 
Nearly  as  long,  also,  before  the  Declaration  of  Independence,  he 
had  become  the  resident  agent  in  England  of  several  of  the  colo- 
nies, in  which  post  he  continued,  Avith  a short  interval,  through  all 
the  controversies  that  preceded  the  Eevolution,  and  until  recon- 
ciliation Avith  the  mother  country  had  become  impossible.^ 

Eeturning  in  17Y5,  he  Avas  immediately  appointed  by  the  peo- 
ple of  PennsylA^ania  one  of  their  delegates  in  the  second  Conti- 
nental Congress.  In  the  folloAAung  year  he  was  sent  as  commis- 
sioner to  France,  Avhere  he  remained  until  he  Avas  recalled,  and 
was  succeeded  by  Mr.  Jefferson  in  1785. 

With  the  fame  of  his  two  residences  abroad— the  one  before 
and  the  other  after  the  country  had  seA^ered  its  connection  Avith 
England  the  whole  land  was  filled.  The  first  of  them,  com- 
mencing with  an  employment  for  settling  the  miserable  disputes 
between  the  people  and  the  proprietaries  of  Pennsylvania,  was 
extended  to  an  agency  for  the  three  other  colonies  of  Georgia, 
NeAv  J ersey,  and  Massachusetts,  AA-hich  finally  led  him  to  take  part 
in  the  affairs  of  all  British  America,  and  made  him  virtually  the 
representative  of  American  interests.  His  brief  service  in  Con-  ' 
gress,  during  Avhich  he  signed  the  Declaration  of  Independence, 
AA^as  folloAved  by  his  appointment  as  commissioner  at  the  court  of 
\ ersailles,  Avhich  he  made  the  most  important  sphere  that  has 


’ In  1753  he  was  appointed  deputy  postmaster-general  for  the  Britisli  colo- 
nies, from  which  place  he  was  dismissed  in  1774,  while  in  England,  on  account 
of  the  part  he  had  taken  in  American  affairs. 

2 In  1754.  See  an  account  of  this  plan,  ante,  p.  4. 

He  first  went  to  England  in  1757,  as  agent  of  the  Pennsylvania  Assembly 
to  settle  their  difficulties  with  the  proprietaries,  where  he  remained  until  1762. 
In  1764  he  was  reappointed  provincial  agent  in  England  for  Pennsylvania;  in 
1768  he  received  a similar  appointment  from  Georgia;  in  1769  he  was  chosen 
agent  tor  New  Jersey ; and  in  1770  he  became  agent  for  Massachusetts.  His 
whole  residence  in  England,  from  1757  to  1775,  embraced  a period  of  sixteen 
years,  two  years  having  been  passed  at  home.  He  resided  in  France  about  nine 
years,  from  1776  to  1785. 


292 


CONSTITUTIONAL  HISTORY. 


ever  been  filled  by  any  American  in  Europe,  and  in  which  that 
treaty  of  alliance  with  France  was  negotiated  which  enabled  the 
United  States  to  become  in  fact  an  independent  nation. 

His  long  career  of  public  service ; his  eminence  as  a philoso- 
pher, a philanthropist,  and  a thinker ; the  general  reverence  of 
the  people  for  his  character;  his  peculiar  power  of  illustrating 
and  enforcing  his  opinions  by  a method  at  once  original,  simple, 
and  attractive— made  his  presence  of  the  first  importance  in  an 
assembly  which  was  to  embrace  the  highest  wisdom  and  virtue  of 
America. 

It  is  chiefly,  however,  by  the  countenance  he  gave  to  the  effort 
to  frame  a constitution  that  his  services  as  a member  of  this  body 
are  to  be  estimated.  His  mind  was  at  all  times  ingenious,  rather 
than  large  and  constructive;  and  his  great  age,  while  it  had 
scarcely  at  all  impaired  his  natural  powers,  had  confirmed  him  in 
some  opinions  Avhich  must  certainly  be  regarded  as  mistaken.  His 
^desire,  for  example,  to  have  the  legislature  of  the  United  States 
consist  of  a single  body,  for  the  sake  of  simplicity,  and  his  idea 
that  the  chief  executive  magistrate  ought  to  receive  no  salary  for 
his  official  services,  for  the  sake  of  purity,  were  both  singular  and 
unsound. 

But  there  Avere  points  upon  Avhich  he  displayed  extraordinary 
Avisdom,  penetration,  and  forecast.  When  an  objection  to  a pro- 
portionate representation  in  Congress  Avas  started,  upon  the  ground 
that  it  Avould  enable  the  larger  states  to  SAvalloAV  up  the  smaller, 
he  declared  that,  as  the  great  states  could  propose  to  themselves 
no  advantage  by  absorbing  their  inferior  neighbors,  he  did  not 
belieA^e  they  Avould  attempt  it.  His  recollection  carried  him  back 
to  the  early  part  of  the  century,  Avhen  the  union  betAveen  England 
and  Scotland  Avas  proposed,  and  Avhen  the  Scotch  patriots  Avere 
alarmed  by  the  idea  that  they  should  be  ruined  by  the  superiority 
of  England  unless  they  had  an  equal  number  of  members  in  Par- 
liament ; and  yet,  notAvithstanding  the  great  inferiority  in  their 
representation  as  established  by  the  act  of  union,  he  declared  that, 
doAvn  to  that  day,  he  did  not  recollect  that  anything  had  been  done 
in  the  Parliament  of  Great  Britain  to  the  prejudice  of  Scotland.* 


1 He  added,  witli  liis  usual  quiet  humor,  that  “ wlioever  looks  over  the  lists 
'of  public  officers,  civil  aud  military,  of  that  nation,  will  find,  I believe,  that 


FRANKLIN. 


293 


Although  he  spoke  but  seldom  hi  the  Convention,  his  influence 
was  very  great,  and  it  was  always  exerted  to  cool  the  ardor  of 
debate,  and  to  check  the  tendency  of  such  discussions  to  result  in 
irreconcilable  differences.  11  is  great  age,  his  venerable  and  be- 
nignant aspect,  his  wide  reputation,  his  acute  and  sagacious  phi- 
losophy—which  was  always  the  embodiment  of  good  sense— would 
have  given  him  a controlling  weight  in  a much  more  turbulent 
and  a far  less  intelligent  assembly.  When— after  debates  in  which 
the  powerful  intellects  around  him  had  exhausted  the  subject,  and 
both  sides  remained  firm  in  opinions  diametrically  opposed — he 
rose  and  reminded  them  that  they  were  sent  to  consult  and  not  to 
contend,  and  that  declarations  of  a fixed  opinion  and  a determina- 
tion never  to  change  it  neither  enlightened  nor  convinced  those 
who  listened  to  them,  his  authority  was  felt  by  men  who  could 
have  annihilated  any  mere  logical  argument  that  might  have  pro- 
ceeded from  him  in  his  best  days. 

Dr.  Franklin  was  one  of  those  who  entertained  serious  objec- 
tions to  the  Constitution,  but  he  sacrificed  them  before  the  Con- 
vention was  dissolved.  Believing  a general  government  to  be 
necessary  for  the  American  States ; holding  that  every  form  of 
government  might  be  made  a blessing  to  the  people  by  a good 
administration ; and  foreseeing  that  the  Constitution  would  be 
well  administered  for  a long  course  of  years,  and  could  only  end 
in  despotism  when  the  people  should  have  become  so  corrupted  as 
to  be  incapable  of  any  other  than  a despotic  government,  he  glad- 
ly embraced  a system  which  he  was  astonished  to  find  approach- 
ing so  near  to  perfection. 

“ The  opinions  I have  had  of  its  errors,”  said  he,  “ I sacrifice  to 
the  public  good.  Within  these  walls  they  were  born,  and  here 
they  shall  die.  If  every  one  of  us,  in  returning  to  our  constitu- 
ents, were  to  report  the  objections  he  has  had  to  it,  and  endeavor 
to  gain  partisans  in  support  of  them,  we  might  prevent  its  being 
generally  received,  and  thereby  lose  all  the  salutary  effects  and 
gieat  advantages  resulting  naturally  in  our  favor,  among  foreign 
nations  as  well  as  among  ourselves,  from  our  real  or  apparent 
unanimity.  Much  of  the  strength  and  efficiency  of  any  govern- 

tlie  Nortli  Britons  enjoy  their  full  proportion  of  emolument.”  Madison,  Ellio*' 

V.  179. 


CONSTITUTIONAL  HISTORY. 


29L 

ment  in  procuring  and  securing  happiness  to  the  people  depends 
on  opinion — on  the  general  opinion  of  the  goodness  of  the  govern- 
ment, as  well  as  of  tlie  wisdom  and  integrity  of  its  governors.  I 
hope,  therefore,  that  for  our  own  sakes  as  a part  of  the  people, 
and  for  the  sake  of  posterity,  we  shall  act  heartily  and  unani- 
mously in  recommending  this  Constitution  (approved  by  Congress 
and  confirmed  by  the  conventions)  Avherever  our  influence  may 
extend,  and  turn  our  future  thoughts  and  endeavors  to  the  means 
of  liavino;  it  Avell  administered.”  ^ 

And  thus,  with  a cheerful  confidence  in  the  future,  sustaining 
the  hopes  of  all  about  him,  and  hailing  every  omen  that  foretold 
the  rising  glories  of  his  country,'^  this  wise  old  man  passed  out 
from  the  assembly,  Avhen  its  anxious  labors  had  been  brought  to 
a close  with  a nearer  approach  to  unanimity  than  had  ever  been 
expected.  He  lived,  borne  down  by  infirmities, 

“ To  draw  his  breath  in  pain” 

for  nearly  thr^^e  years  after  the  Convention  Avas  dissoHed;  but  it 
AAnis  to  see  the  Constitution  established,  to  witness  the  growing 
strength  of  the  neAV  government,  and  to  contemplate  the  opening 
successes  and  the  beneficent  promise  of  Washington’s  administra- 
tion. Writing  to  the  first  president  in  1789,  he  said:  '‘For  my 
own  personal  ease,  I should  have  died  two  years  ago  ; but  though 
those  years  have  been  spent  in  excruciating  pain,  I am  pleased 
that  I have  lived  them,  since  they  have  brought  me  to  see  our 
present  situation.”  ' 


' Miidison.  Elliot,  V.  554. 

^ Mr.  Madison  has  recorded  the  following  anecdote  at  the  end  of  the  Debates', 
as  an  incident  worthy  of  being  known  to  posterity.  “Whilst  the  last  members 
were  signing,  Dr.  Franklin,  looking  towards  the  president’s  chair,  at  the  back 
of  which  a rising  sun  happened  to  be  painted,  observed  to  a few  members  near 
him,  that  painters  had  often  found  it  difficult,  in  their  art,  to  distinguish  a rising 
from  a setting  sun.  ‘ I have,’  said  he,  ‘ often  and  often,  in  the  couise  ot  the  ses- 
sion, and  the  vicissitude  of  my  hopes  and  fears  as  to  its  issue,  looked  at  that 
behind  the  president,  without  being  able  to  tell  whether  it  was  rising  or  setting  , 
but  now,  at  length,  I have  the  happiness  to  know  that  it  is  a rising  and  not  a 
setting  sun.’  ” 

^ Sparks’s  Life  of  Franklin,  p.  538. 


GOUYEIINEUK  MORRIS. 


295 


Gouvcrncui;  Morris,  a brilliant,  energetic,  and  patriotic  states- 
man, was  born  in  the  ])rovince  of  New  York,  at  Morrisania 

the  seat  of  bis  family  for  several  generations — in  the  year  1752. 
lie  was  educated  for  the  bar;  but  in  1775,  at  the  age  of  tliree-and- 
twenty,  be  was  elected  a member  of  the  Provincial  Congress  of 
New  Y ork,  in  which  be  became  at  once  distinguished.  When  the 
recommendation  of  the  Continental  Congress  to  the  colonies  to 
organize  new  forms  of  government  was  received,  he  took  a lead- 
ing  part  in  the  debates  on  the  formation  of  a new  constitution  for 
the  state  ; and  when  the  subject  of  independence  was  brought  for- 
ward, in  order  that  the  delegates  of  New  Pork  in  the  Continental 
Congress  might  be  clothed  with  sufficient  authority,  he  delivered  a 
speech  of  great  power,  of  which  fragments  only  are  preserved,  but 
which  evidently  embraced  the  most  comprehensive  and  statesman- 
like views  of  the  situation  and  future  prospects  of  this  country. 
Speaking  of  the  capacity  of  America  to  sustain  herself  without  a 
connection  with  Great  Britain,  he  said  : 

Thus,  sir,  by  means  of  that  great  gulf  which  rolls  its  waves 
between  Europe  and  America ; by  the  situation  of  these  colonies, 
always  adapted  to  hinder  or  interrupt  all  communication  between 
the  two  ; by  the  productions  of  our  soil,  which  the  Almighty  has 
filled  with  every  necessary  to  make  us  a great  maritime  people ; 
by  the  extent  of  our  coasts  and  those  immense  rivers,  which  serve, 
at  once  to  open  a communication  with  our  interior  country,  and 
to  teach  us  the  arts  of  navigation  ; by  those  vast  fisheries,  which, 
affording  an  inexhaustible  mine  of  wealth  and  a cradle  of  indus- 
try, breed  hardy  mariners,  inured  to  danger  and  fatigue ; finally, 
by  the  unconquerable  spirit  of  freemen,  deeply  interested  in  the 
preservation  of  a government  which  secures  to  them  the  blessings 
of  liberty  and  exalts  the  dignity  of  mankind— by  all  these,  1 ex- 
pect a full  and  lasting  defence  against  any  and  every  part  of  the 
earth;  while  the  great  advantages  to  be  derived  from  a friendly 
intercourse  with  this  country  almost  render  the  means  of  defence 
unnecessary,  from  the  great  improbability  of  being  attacked. 
So  far,  peace  seems  to  smile  upon  our  future  independence.  But 
that  this  fair  goddess  will  equally  crown  our  union  with  Great 
Britain,  my  fondest  hopes  cannot  lead  me  to  suppose.  Every  war 
in  which  she  is  engaged  must  necessarily  involve  us  in  its  detest- 
able consequences  ; while,  weak  and  unarmed,  we  have  no  shield 


296  CONSTITUTIONAL  HISTORY. 

of  defence,  unless  such  as  she  may  please  (for  her  own  sake)  to 
afford,  or  else  the  pity  of  her  enemies  and  the  insignificance  of 
slaves  beneath  the  attention  of  a generous  foe.” ' 

In  1778  Mr.  Morris  was  chosen  a delegate  to  the  Continental 
Congress  from  the  state  of  New  York.  His  reputation  for  talent, 
zeal,  activity,  and  singular  capacity  for  business  had  preceded 
him.  On  the  day  when  he  presented  his  credentials  he  was 
placed  upon  a committee  to  proceed  to  Valley  Forge,  to  confer 
with  Washington  on  the  measures  necessary  for  a reorgani- 
zation of  the  army.  He  remained  in  Congress  for  two  years, 
discharging,  with  great  ability  and  high  patriotism,  the  most 
important  functions,  and  subjected  all  the  while  to  the  most  un- 
just popular  suspicions  of  his  fidelity  to  the  cause  of  the  country. 
Few  of  all  the  prominent  men  of  the  Kevolution  sacrificed  or 
suffered  more  than  Gouverneur  Morris.  The  fact  that  all  the 
other  members  of  his  family  adhered  to  the  Royalist  side,  and  an 
ineffectual  effort  which  he  once  made  to  visit  his  mother  at  his 
ancestral  home,  then  wdthin  the  British  lines,  gave  his  enemies 
the  means  of  inflicting  upon  him  a deep  injury  in  the  popular 
estimation.  He  was  not  re-elected  to  Congress  ; but  short  as  his 
career  in  that  body  was,  it  was  filled  wdth  services  inferior  to 
those  of  none  of  his  associates. 

Before  he  left  Congress,  in  February,  1779,  he  made — as  chair- 
man of  a committee  to  whom  certain  communications  from  the 
French  minister  to  the  United  States  were  referred— a report 
which  became  the  basis  of  the  peace  that  afterwards  followed ; 
and  when  the  principles  on  which  the  peace  was  to  be  negotiated 
had  been  settled,  he  drew  the  instructions  to  the  commissioners, 
and  they  were  unanimously  adopted  without  change.^ 

On  leaving  Congress,  Mr.  Morris  took  up  his  residence  in  Phila- 
delphia, and  resumed  the  practice  of  the  law.  His  remarkable 


1 Sparks's  Life  of  G.  ]Morris,  I.  103.  The  florid  and  declamatory  style  of  this 
speech  belongs  to  the  period  and  to  the  youth  ot  the  speaker.  The  breadth  of 
its  views  and  its  vigor  of  thought  display  the  characteristics  which  belonged 
to  him  through  life.  He  had  a prophetic  insight  of  the  future  resources  of  this 
country,  and  made  many  remarkable  predictions  of  its  greatness.  His  biog- 
rapher has  claimed  for  him  the  suggestion  of  the  plan  tor  uniting  the  waters  of 
Lake  Erie  with  those  of  the  Hudson,  and  upon  very  strong  evidence. 

Sec  the  Report  and  the  debates  thereon,  Secret  Journals,  II.  132  ct  seq. 


GOUVEflNEUll  MORRIS. 


297 


talent  for  business,  however,  and  his  intimate  knowledge  of  finan- 
cial subjects,  led  to  his  appointment  as  assistant  financier  with 
Robert  Morris.  In  this  capacity  he  suggested  the  idea  of  the 
decimal  notation,  which  was  afterwards  made  the  basis  of  the 
coinage  of  the  United  States.' 

Having  been  appointed  one  of  the  delegates  from  the  state  of 
l^ennsylvania  to  the  Convention  for  forming  the  Constitution  of 
the  United  States,  Mr.  Morris  attended  the  whole  session,  with 
the  exception  of  a few  days  in  June,  and  entered  into  its  business 
with  his  accustomed  ardor.  To  remove  impediments,  obviate  ob- 
jections, and  conciliate  jarring  opinions,  he  exerted  all  his  fine 
faculties,  and  employed  his  remarkable  eloquence.  But  he  is 
chiefly  to  be  remembered  in  connection  with  the  Constitution  as 
the  author  of  its  text.  To  his  pen  belongs  the  merit  of  that  clear 
and  finished  style — that  lucidus  or  do — that  admirable  perspicuity 
which  have  so  much  diminished  the  labors  and  hazards  of  inter- 
pretation for  all  future  ages." 


^ In  January,  1782,  the  financier  made  a report,  which  was  ofiicially  signed 
by  liim,  but  which  Mr.  Jeffei'son  says  was  prepared  by  his  assistant,  Gouverneur 
Morris.  It  embraced  an  elaborate  statement  of  the  denominations  and  compara- 
tive value  of  the  foreign  coins  in  circulation  in  the  different  states,  and  proposed 
the  adoption  of  a money  unit  and  a system  of  decimal  notation  for  a new  coin- 
age. The  unit  suggested  was  such  a portion  of  pure  silver  as  would  be  a com-^ 
mon  measure  of  the  penny  of  every  state  without  leaving  a fraction.  This 
common  divisor  Mr.  Morris  found  to  be  of  a dollar,  or  of  the  crown 
sterling.  The  value  of  a dollar  was  tlierefore  to  be  expressed  by  1440  units,  and 
that  of  a crown  by  1600,  each  unit  containing  a quarter  of  a grain  of  fine  silver. 
Nothing,  however,  was  done  until  1784,  when  Mr.  Jefferson,  being  in  Congress, 
took  up  the  sul)ject.  He  ap])roved  of  Mr.  Morris’s  general  views  and  his  method 
of  decimal  notation,  but  objected  to  his  unit  as  too  minute  for  ordinary  use. 
Mr.  Jefferson  proposed  the  dollar  as  the  unit  of  account  and  payment,  and  that 
its  divisions  and  subdivisions  should  be  in  the  decimal  ratio.  This  plan  was 
adopted  in  August,  1785,  and  in  1786  the  names  apd  characters  of  the  coins 
were  determined.  The  ordinance  establishing  the  coinage  was  passed  August 
8,  1786,  and  that  establishing  tlie  mint  on  the  16th  of  October,  in  the  same 
year.  Jefferson’s  Autobiography,  Works,  I.  52-54.  Life  of  Gouverneur  Morris, 
I.  273.  Journals  of  Congress,  XL  179,  254. 

2 The  materials  for  the  final  preparation  of  the  instrument,  consisting  of  a 
reported  draft  in  detail  and  the  various  resolutions  which  had  been  adopted, 
were  placed  in  the  hands  of  a committee  of  revision,  of  which  Dr.  William 
Samuel  Johnson  of  Connecticut  was  the  chairman;  the  other  members  being 


298 


CONSTITUTIONAIi  HISTORY. 


The  character  of  Gouverneur  Morris  was  balanced  by  many 
admirable  qualities.  Ilis  self-possession  was  so  complete  in  all 
circumstances  that  he  is  said  to  have  declared  that  he  never  knew 
the  sensation  of  fear,  inferiority,  or  embarrassment  in  his  inter- 
course with  men.  Undoubtedly  his  self-confidence  amounted 
sometimes  to  boldness  and  presumption ; but  we  have  it  on  no 
less  an  authority  than  Mr.  Madison’s,  that  he  added  to  it  a can- 
did surrender  of  his  opinions  when  the  lights  of  discussion  sat- 
isfied him  that  they  had  been  too  hastily  formed.'  He  was  a 
man  of  genius,  fond  of  society  and  pleasure,  but  capable  of  pro- 
digious exertion  and  industry,  and  possessed  of  great  powers  of 
eloquence. 

He  liked  to  indulge  in  speculations  on  the  future  condition 
of  the  country,  and  often  foresavr  results  which  gave  him  patience 
under  the  existing  state  of  things.  In  ITSd,  writing  to  Mr.  Jay, 
at  a time  when  the  clashing  commercial  regulations  of  the  states 
seemed  about  to  put  an  end  to  the  Union,  he  said:  “True  it  is, 
that  the  general  government  wants  energy,  and  equally  true  it 
is,  that  this  want  will  eventually  be  supplied.  A national  spirit  is 
the  natural  result  of  national  existence,  and  although  some  of  the 
present  generation  may  feel  colonial  oppositions  of  opinion,  yet  this 
generation  will  die  aw^ay  and  give  place  to  a race  of  Americans.” '' 

He  was  himself  at  all  times  an  American,  and  never  more  so 
than  during  the  discussions  of  the  Convention.  xAppealing  to  his 
colleagues  to  extend  their  views  beyond  the  narrow  limits  of  place 
whence  they  derived  their  political  origin,  he  declared,  with  his 
characteristic  energy  and  point,  that  state  attachments  and  state 
importance  had  been  the  bane  of  this  country.  “We  cannot  an- 
nihilate,” said  he,  “ but  we  may  perhaps  take  out  the  teeth  of 
the  serpents.” " 

In  truth,  the  circumstances  of  his  life  had  prevented  him  from 
feeling  those  strong  local  attachments  which  he  considered  the 
great  impediments  to  the  national  prosperity.  Born  in  one  state, 

Messrs.  Hamilton,  Gouverneur  Morris,  Madison,  and  King.  The  chairman  com- 
mitted the  work  to  Mr.  Morris,  and  the  text  of  the  Constitution,  as  adopted, 
was  prepared  by  him.  See  Mr.  IMadison’s  letter  to  Mr.  Sparks,  Life  of  Gouver- 
neur Morris,  I.  284.  Madison’s  Debates,  Elliot,  V.  530. 

1 Life  of  Morris,  I.  284-286.  ' 

3 Madison,  Elliot,  V.  276,  277. 


GOUVERNEUR  MORRIS. 


299 

be  luul  then  resided  for  seven  years  in  anotlier,  from  whose  inhab- 
itants lie  had  received  at  least  equal  marks  of  confidence  with 
those  that  had  been  bestowed  upon  him  by  the  people  among 
whom  he  first  entered  public  life. 

In  his  political  opinions  he  probably  went  further  in  opposi- 
tion to  democratic  tendencies  than  any  other  person  in  the  Con- 
\ention.  He  was  in  favor  of  an  executive  during  good  behavior, 
of  a Senate  for  life,  and  of  a freehold  qualification  for  electors  of 
representatives.  In  several  other  respects  the  Constitution,  as 
actually  framed,  was  distasteful  to  him  ; but,  like  many  of  the 
othei  eminent  men  who  doubted  its  theoretical  or  practical  wis- 
dom, he  determined  at  once  to  abide  by  the  voice  of  the  m.ajority. 
He  saw  that,  as  soon  as  the  plan  should  go  forth,  all  other  con- 
sideiations  ought  to  be  laid  aside,  and  the  great  question  ought 
to  be.  Shall  there  be  a national  government  or  not  ? He  acknowl- 
edged that  the  alternatives  were,  the  adoption  of  the  system  pro- 
posed, or  a general  anarchy— and  before  this  single  and  fearful 
issue  all  questions  of  individual  opinion  or  preference  sank  into 
insignificance.  It  is  a proof  both  of  his  sincerity  and  of  the  esti- 
mate in  which  his  abilities  were  held  that,  wdien  this  great  issue 
was  presented  to  the  people,  he  was  invited  by  Hamilton  to  be- 
come one  of  the  writers  of  the  Federalist.^  It  is  not  known  why 
he  did  not  embrace  the  opportunity  of  connecting  himself  with 
that  celebrated  publication  ; but  his  correspondence  shows  that  it ' 
was  from  no  want  of  interest  in  the  result.  He  took  pains  to  give 
to  Washington  his  decided  testimony,  from  personal  observation, 
that  the  idea  of  his  refusing  the  presidency  would,  if  it  prevailed,' 
be  fatal  to  the  Constitution  in  many  parts  of  the  country.' 

Mr.  Morris  filled  two  important  public  stations  after  the  adop- 
tion of  the  Constitution.  He  was  the  first  minister  to  France  ap- 
pointed by  General  Washington,  and  filled  that  office  from  May, 
1792,  until  August,  1794.  In  February,  1800,  he  was  chosen  by 
the  legislature  of  Hew  York  to  supply  a vacancy  in  the  Senate  of 
the  United  States,  which  he  filled  until  the  4th  of  March,  1803. 
He  died  at  Morrisania  on  the  6th  of  Hovember,  1818.  Let  us 
forget  party,”  said  he,  “ and  think  of  our  country,  which  em- 
braces all  parties.” 


Madison,  Elliot,  V.  556.  2 


® Ibid.,  288-290.  * Ibid.,  517. 


300 


CONSTITUTIONAL  HISTORY. 

Eufus  King,  distinguished  as  a jurist,  a statesman,  an  orator, 
and  a diplomatist,  was  sent  to  the  Convention  by  the  cominon- 
wealth  of  Massachusetts.  Born  in  her  district  of  Maine,  in  1755, 
and  graduated  at  Harvard  College  in  he  came  very  early 

into  public  life,  and  was  rarely  out  of  it  until  his  death,  which 
occurred  in  1827,  in  the  seventy-third  year  of  his  age. 

Ilis  first  public  service  was  in  the  year  1778,  as  a volunteer  in 
the  expedition  against  the  British  in  Khode  Island,  in  which  he 
acted  as  aide-de-camp  to  General  Sullivan.  In  1780  he  com- 
menced the  practice  of  the  law  in  the  town  of  Newburyport,  and 
was  soon  after  elected  from  that  town  to  the  legislature  of  the 
state.  There  he  distinguished  himself  by  a very  powerful  speech 
in  favor  of  granting  to  the  general  government  the  five  per  cent, 
impost  recommended  by  Congress  as  part  of  the  revenue  system 
of  1788. 

He  was  soon  after  elected  a member  of  Congress  from  Massa- 
chusetts, in  which  body  he  took  his  seat  on  the  6th  of  December, 
1784,  and  served  until  the  close  of  the  year  1787.  He  was  thus  a 
member  both  of  the  Convention  for  forming  the  Constitution  and 
of  the  Congress  which  sanctioned  and  referred  it  to  the  people. 
He  was  also  a member  of  the  Convention  of  Massachusetts,  in 
which  the  Constitution  w^as  ratified  by  that  state. 

Mr.  King  did  not  favor  the  plan  of  a convention  for  the  revis- 
ion of  the  federal  system  until  after  the  meeting  at  Annapolis  had 
been  held ; and,  indeed,  he  did  not  concur  in  its  expediency  until 
after  the  troubles  in  Massachusetts  had  made  its  necessity  appa- 
rent. In  1785,  as  we  have  seen,  he  joined  with  the  other  members 
of  the  Massachusetts  delegation  in  opposing  it.'^  In  the  autumn  of 
1786,  when  the  report  of  the  Annapolis  Convention  was  befoie  Con- 
gress,  he  expressed  the  opinion,  in  person,  to  the  legislature  of  Mas- 
sachusetts, that  the  Articles  of  Confederation  could  not  be  altered 
except  by  the  consent  of  Congress  and  the  confirmation  of  tlie 
several  legislatures ; that  Congress  ought,  in  the  first  instance,  to 
make  the  examination  of  the  federal  system,  since,  if  it  was  done 
by  a convention,  no  legislature  would  have  a right  to  confirm  it ; 
and  further,  that  if  Congress  should  reject  the  report  of  a con- 
vention the  most  fatal  consequences  might  follow.  For  these 


Ante,  p.  228,  note. 


KING. 


301 

reasons  lie  at  that  time  held  Congress  to  be  the  proper  body  to 
pro[)ose  alterations.' 

At  the  moment  when  he  was  making  this  address  to  the  legis- 
lature the  disturbances  in  Massachusetts  were  fast  gathering  into 
that  formidable  insurrection  which  two  months  afterwards  burst 
forth  in  the  interior  of  the  state."  Mr.  King  spoke  of  these  com- 
motions in  grave  and  pointed  terms.  He  told  the  legislature  that 
Congress  viewed  them  with  deep  anxiety  ; that  every  member  of 
the  national  councils  felt  his  life,  liberty,  and  property  to  be  in- 
volved in  the  issue  of  their  decisions;  that  the  United  States 
Avould  not  be  inactive  on  such  an  occasion,  for,  if  the  lawful 
authority  of  the  state  were  to  be  prostrated,  every  other  govern- 
ment would  eventually  be  swept  away.  He  entreated  them  to  re- 
member that,  if  the  government  were  in  a minority  in  the  state, 
they  had  a majority  of  every  state  in  the  Union  to  join  them.’ 

He  returned  to  Congress  immediately.  But  there  he  found 
that  the  reliance  which  he  had  placed  upon  the  ability  of  the  Con- 
federation to  interfere  and  suppress  such  a rebellion  was  not  well 
founded.  The  power  was  even  doubted,  or  denied,  by  some  of 
the  best  statesmen  in  that  body;  and  although  the  insurrection 
W'as  happily  put  down  by  the  government  of  the  state  itself,  the 
fearful  exposure  of  a want  of  external  power  adequate  to  such 
emergencies  produced  in  Mr.  King,  as  in  many  others,  a great 
change  of  views,  both  as  to  the  necessity  for  a radical  change  of  ' 
the  national  government  and  as  to  the  mode  of  effecting  it.  His 
vote,  in  February,  wms  given  to  the  proposition  introduced  by  the 
delegation  of  Sew  York  for  a national  convention  ; and  when  that 
failed  he  united  with  his  colleague,  Mr.  Dane,  in  bringing  forward 
the  resolution  by  which  the  Convention  was  finally  sanctioned  in 
Congress/ 

The  Convention  having  been  sanctioned  by  Congress,  no  man 
was  more  ready  than  Mr.  King  to  maintain  its  power  to  deliberate 
on  and  propose  any  alterations  that  Congress  could  havm  suggested 
in  the  Federal  Articles.  He  held  that  the  proposing  of  an  entire 


' Ml.  King,  being  in  Boston  in  Octolier,  1780,  was  desired  liy  the  leo-isiatve 
to  attend  and  give  an  account  of  tlie  state  of  national  affairs.  For  an  abstract 
of  his  uddress,  see  Boston  Magazine  for  the  j^ear  1788,  p.  406. 

’.tnte,  p.  ISOetseq.  s Ibid.  ’*  Journals,  XII.  15-17. 


302 


CONSTITUTIONAL  HISTORY. 


change  in  the  mode  of  suffrage  in  the  national  legislature,  from  a 
representation  of  the  states  alone  to  a representation  of  the  peo- 
ple, was  within  the  scope  of  their  powers,  and  consistent  with  the 
Union ; for  if  that  Union,  on  the  one  hand,  involved  the  idea  of  a 
confederation,  on  the  other  hand  it  contained  also  the  idea  of  con- 
solidation, from  which  a national  character  resulted  to  the  individ- 
uals of  whom  the  states  were  composed.  He  doubted  the  practi- 
cability of  annihilating  the  state  governments,  but  thought  that 
much  of  their  power  ought  to  be  taken  from  them.'  He  deckred 
that,  when  every  7nan  in  America  might  be  secured  m his  rights 
by  a government  founded  on  equality  of  representation,  he  could 
not  sacrifice  such  a substantial  good  to  the  phantom  of  state  sover- 
eio-ntv.  If  this  illusion  were  to  continue  to  prevail,  he  should  be 
prepared  for  any  event,  rather  than  sit  down  under  a government 
founded  on  a vicious  principle  .of  representation,  and  one  that 
must  be  as  short-lived  as  it  would  be  unjust." 

There  is  one  feature  of  the  Constitution  with  which  the  name 
of  Mr.  King  should  always  be  connected,  and  of  which  he  may  be 
said,  indeed,  to  have  been  the  author.  Towards  the  close  of  the. 
session  he  introduced  the  prohibition  on  the  states  to  pass  laws 
aflectine-  the  obligation  of  contracts.  The  Ordinance  for  the 
government  of  the  Northwestern  Territory,  which  had  been 
passed  by  Congress  about  a month  previous,  contained  a similar 
prohibition  on  the  states  to  be  formed  out  of  that  territory 
That  any  of  the  jurists  who  were  concerned  in  the  framing  of 
either  instrument  foresaw  at  the  moment  all  the  great  future 
importance  and  extensive  operation  of  this  wise  and  effective  pro- 
vision we  are  not  authorized  to  affirm.  But  a clause  which  has 
enabled  the  supreme  national  judicature  to  exercise  a vast,  direct, 
and  uniform  influence  on  the  security  of  property  throughout  all 
the  states  of  this  Confederacy  should  be  permanently  connected 
with  the  names  of  its  authors.' 


1 Madison,  Elliot,  V.  1313,  313.  ' . 

= The  ordinance  for  the  government  of  the  Northwestern  Territory  was  in 
Con-ress  July  11th,  1787,  and  was  passed  July  13th.  The  cmnmittee  by  whom  it 
was  reported  were  Messrs.  Carrington  and  B.  H.  Lee  of  Virginia,  Kearney  o De  - 
aware  Smith  of  New  York,  and  Mr.  Dane.  The  clan.se  relating  to  contracts  was 
in  these  words ; “ And  in  the  just  preservation  of  rights  and  property,  it  is  unc  er- 
stood  and  declared,  that  no  law  ought  ever  to  be  made  or  have  force  in  the 


303 


CHARLES  COTESWORTII  PINCKNEY. 

Mr.  King  was  but  little  ]>ast  the  ago  of  thirty  when  the  Con- 
stitution was  adopted.  After  that  event  ho  went  to  reside  in  the 
city  of  New  York,  and  entered  upon  the  career  of  distinction  which 
tilled  up  the  residue  of  his  life  as  a senator  in  Congress  and  as  min- 
ister to  England.  No  formal  biography  of  him  has  yet  appeared, 
but  when  that  duty  shall  have  been  discharged  by  those  to  whom 
it  appropriately  belongs,  there  will  be  added  to  our  literature  an 
account  of  a man  of  the  most  eminent  abilities  and  the  purest  patri- 
otism, whose  influence  and  agency  in  the  great  transactions  which 
attended  the  origin  and  first  operations  of  the  government  were  of 
the  utmost  importance. 

Charles  Cotesworth  Pinckney  of  South  Carolina,  the  eldest 
son  of  a chief-justice  of  that  colony,  distinguished  both  as  a sol- 
dier and  a civilian,  was  educated  in  England,  and  read  law  at  the 
Temple.  He  returned  to  his  native  province  in  1769,  and  com- 
menced the  practice  of  his  profession,  which,  like  many  other  of 
the  young  American  barristers  of  that  day,  he  was  obliged  to  aban- 
don for  the  duties  of  the  camp  when  the  troubles  of  the  Eevolu- 
tion  began.  He  became  colonel  of  the  first  regiment  of  the  Caro- 
lina infantry,  and  served  under  General  Moultrie  in  the  defence  of 
the  fort  on  Sullivan’s  Island.  This  gallant  resistance  having  freed 
the  South  for  a time  from  invasion,  Pinckney  repaired  to  the 
Northern  army,  and  was  made  aide-de-camp  to  Washington,  ' 
in  which  capacity  he  served  at  the  battles  of  the  Brandywine 
and  Germantown.  He  afterwards  acquired  great  distinction  in 
the  defence  of  South  Carolina  against  the  British  under  Sir  Henrv 
Clinton. 

On  the  return  of  peace  he  devoted  himself  to  the  law,  in  which 
he  became  eminent.  He  belonged  to  that  school  of  public  men 
who  had  been  trained  in  the  service  of  the  country  under  the  eye 
of  Washington,  and  who  had  experienced  with  him  the  fatal  de- 

said  territory  that  shall  in  any  manner  whatever  interfere  with  or  affect  private 
contracts  or  engagements,  honafide  and  without  fraud  previously  formed.”  On 
the  28th  of  August  Mr.  King  moved  in  the  Convention  to  insert  the  same  clause 
m the  Constitution ; but  it  was  opposed,  and  was  not  finally  adopted  until  Sep- 
tember 14,  when  it  was  incorporated  in  the  phraseologv  in  which  it  now  stands 
m the  Constitution.  Madison,  Elliot,  V.  485  ; Journal  of  the  Convention,  Elliot, 

1.  oil.  See  Appendix,  on  the  Authorship  of  the  Ordinance. 


3Q4,  CONSTITUTIONAL  HISTORY. 

fects  of  the  successive  governments  which  followed  the  Declara- 
tion of  Independence.  Of  his  abilities,  patriotism,  and  purity  of 
character  we  have  the  strongest  evidence  in  the  repeated  efforts 
made  by  Washington,  after  the  establishment  of  the  Constitution, 
to  induce  him  to  accept  some  of  the  most  important  posts  in  the 

government.  i • 

He  was,  indeed,  one  of  that  order  of  men  to  whom  Washing- 

ton  gave  his  entire  confidence  from  the  first.  A ripe  scholar,  a 
profound  lawyer,  with  Revolutionary  laurels  of  the  most  honora- 
ble kind — wise,  energetic,  and  disinterested  it  is  not  singular  that 
the  people  of  South  Carolina  should  have  selected  him  as  one  of 
their  delegates  to  an  assembly  which  was  to  frame  a new  consti- 
tution of  government  for  the  country  to  whose  service  his  earlier 
years  had  been  devoted. 

General  Pinckney  entered  the  Convention  with  a desire  to 
adhere,  if  possible,  to  the  characteristic  principles  of  the  Confed- 
eration, but  also  with  the  wish  to  make  that  government  more 
effective  by  giving  to  it  distinct  departments  and  enlarged  pow- 
ers.* But  in  the  progress  of  the  discussions  he  surrendered  these 
views,  and  became  a party  to  those  arrangements  by  which  mutual 
concessions  between  the  opposing  sections  of  the  Union  made  a 
different  form  of  government  a practicable  result. 

He  was  a strenuous  supporter  of  the  interests  of  the  slavehold- 
ino-  states  in  all  that  related  to  their  right  to  hold  and  increase 
their  slave  population.  He  contended  earnestly  against  a giant 
of  authority  to  the  general  government  to  prohibit  the  importa- 
tion of  slaves;  for  he  supposed  that  his  constituents  would  not 
surrender  that  right.  But  he  finally  entered  into  the  arrange- 
ment by  which  the  postponement  of  the  power  to  prohibit  the 
slave-trade  to  the  year  1808  was  made  a ground  of  consent  on  the 
part  of  the  Southern  States  to  give  the  regulation  of  commeTCe 
to  the  Union.  He  considered  it,  he  said,  the  true  interest  of  ye 
Southern  States  to  have  no  regulation  of  commerce ; but  he  yielded 
it  in  consideration  of  the  losses  brought  upon  the  comiyrce  of 
the  Eastern  States  by  the  Revolution,  and  of  their  liberality  tow- 
ards the  interests  of  the  Southern  portion  of  the  Confederacy. 

The  framers  of  the  Constitution  of  the  United  States  have 


Madison,  Elliot,  V.  133. 


CHARLES  COTES  WORTH  PINCKNEY.  ‘]05 

often  been  reproached  for  permitting  the  slave-trade  to  he  carried 
on  for  twenty  years  after  tlie  period  of  its  formation;  and  the 
Eastern  States  have  been  especially  accused  of  a sordid  spirit 
of  trade  in  purchasing  for  themselves  the  advantage  of  a national 
regulation  of  commerce  by  this  concession.  It  is  the  duty  of  his- 
tory, however,  to  record  the  facts  in  their  true  relations. 

At  the  time  when  the  Convention  for  framing  our  Constitution 
was  assembled  no  nation  had  prohibited  the  African  slave-trade. 
The  English  Quakers,  following  the  example  of  their  American 
brethren,  had  begun  to  move  upon  the  subject,  but  it  was  not 
brought  formally  before  Parliament  until  1Y88  ; the  trade  was  not 
abolished  by  act  of  Parliament  until  1807,  nor  made  a felony  until 
1810.  Kapoleon’s  decree  of  1815  was  the  first  French  enactment 
against  the  traffic. 

But  in  1787  many  of  the  members  of  the  American  Conven- 
tion insisted  that  the  power  to  put  an  end  to  this  trade  ought  to 
be  vested  in  the  new  government  which  they  were  endeavoring 
to  form.  But  they  found  certain  of  the  Southern  States  unwilling 
to  deprive  themselves  of  the  supply  of  this  species  of  labor  for 
their  new  and  yet  unoccupied  lands.  Those  states  would  not 
consent  to  a power  of  immediate  prohibition,  and  they  were  ex- 
tremely reluctant  to  yield  even  a power  that  might  be  used  at  a 
future  period.  They  preferred  to  keep  the  whole  subject  in  their 
own  hands,  and  to  determine  for  themselves  when  the  importa-  ' 
tion  should  cease.  The  members  of  the  Convention,  therefore, 
who  desired  the  abolition  of  this  trade,  found  that,  if  they  at- 
tempted to  force  these  states  to  a concession  that  it  ought  to  be 
immediately  prohibited,  either  the  regulation  of  commerce— the 
chief  object  for  which  the  Convention  had  been  called— could  not 
be  obtained  for  the  new  Constitution,  or,  if  it  were  obtained,  sev- 
eral of  the  Southern  States  would  be  excluded  from  the  Union. 
The  question,  then,  that  presented  itself  to  them  was  a great  ques- 
tion of  humanity  and  public  policy,  to  be  judged  and  decided 
upon  all  the  circumstances  that  surrounded  it. 

Were  they  to  form  a union  that  should  include  only  those 
states  willing  to  consent  to  an  immediate  prohibition  of  the  slave- 
trade,  and  thus  leave  the  rest  of  the  states  out  of  that  union,  and 
independent  of  its  power  to  restrain  the  importation  of  slaves? 
ere  they  to  abandon  the  hope  of  forming  a new  Constitution 
I.— 20 


306 


CONSTITUTIONAL  HISTORY. 


for  the  thirteen  states  that  had  gone  together  through  all  the  con- 
flicts and  trials  and  sacrifices  of  the  Ee volution,  or  were  they  to 
form  such  a government,  and  secure  to  it  the  power  at  some  early 
period  of  putting  an  end  to  this  traffic  ? If  they  were  to  do  the 
latter — if  the  cause  of  humanity  demanded  action  upon  this  and 
all  the  other  great  objects  dependent  upon  their  decisions — how 
could  the  commercial  interests  of  the  country  be  better  used  than 
in  the  acquisition  of  a power  to  free  its  commerce  from  the  stain 
and  reproach  of  this  inhuman  traffic  ? By  the  arrangement  which 
was  to  form  one  of  the  principal  “compromises”  of  the  Constitu- 
tion, American  commerce  might  achieve  for  itself  the  opportunity 
to  do  what  no  nation  had  yet  done.  By  this  arrangement  it 
might  be  implied  in  the  fundamental  law  of  the  new  government 
about  to  be  created  for  the  American  people  that  the  abolition 
of  the  slave-trade  was  an  object  that  ought  to  engage  the  atten- 
tion of  Christian  states.  Without  it  the  abolition  of  this  trade 
could  not  be  secured  within  any  time  or  by  any  means  capable  of 
being  foreseen  or  even  conjectured. 

That  the  framers  of  the  Constitution  judged  Avisely,  that  they 
acted  upon  motives  Avhich  Avill  enable  history  to  shield  them 
from  all  reproach,  and  that  they  brought  about  a result  alike 
honorable  to  themselves  and  to  their  country,  Avill  not  be  denied 
by  those  Avho  remember  and  duly  appreciate  the  fact  that  the 
Congress  of  the  United  States,  under  the  Constitution,  was  the 
first  legislative  body  in  the  Avorld  to  prohibit  the  carrying  of 
slaves  to  the  territories  of  foreign  countries.* 

It  is  no  inconsiderable  honor  to  the  statesmen  situated  as  Gen- 
eral Pinckney  and  other  representatives  of  the  Southern  States 
were,  that  they  should  ha\^e  frankly  yielded  the  prejudices,  and 
Avhat  they  supposed  to  be  the  interests,  of  their  constituents,  to 
the  great  object  of  forming  a more  perfect  union.  Certainly  they 
could  urge,  Avith  equal  if  not  greater  force  and  truth,  the  same 
arguments  for  the  continuance  of  the  slave-trade  Avhich  for  near- 
ly tAventy  years  afterAvards  Avere  continually  heard  in  the  British 
Parliament,  and  Avhich  postponed  its  abolition  until  long  after  the 


1 Denmark,  it  is  said,  abolished  tlie  foreign  slave-trade  and  the  importation 
into  her  colonies  in  1792,  but  the  prohibitions  were  not  to  take  effect  until  1804. 
1 Kent’s  Commentaries,  198,  note  (citing  Mr.  Wheaton). 


CIIAKLES  COTESWORTII  PINCKNEY.  307 

people  of  lui^ljuid  had  heconie  satisfied  botli  of  its  inhumanity 
and  its  impolic}^  AVhethcr  General  Pinckney  was  right  or  wrong 
m the  opinion  that  his  constituents  needed  no  national  regulation 
of  commerce,  there  can  be  no  doubt  of  his  sincerity  when  he  ex- 
pressed it.  Nor  can  there  be  any  doubt  that  he  was  fully  con- 
vinced of  the  fact,  when  he  asserted  that  they  would  not  adopt  a 
constitution  that  should  vest  in  the  national  government  an  im- 
mediate power  to  prohibit  the  importation  of  slaves.  lie  made, 
therefore,  a real  concession  when  he  consented  to  the  prohibition 
at  the  end  of  twenty  years,  and  he  made  it  in  order  that  the 
union  of  the  thirteen  states  might  be  preserved  under  a Constitu- 
tion  adequate  to  its  wants. 

For  this,  as  well  as  for  other  services,  he  is  entitled  to  a place 
of  honor  among  the  great  men  who  framed  the  charter  of  our 
national  liberties;  and  when  we  recollect  that  by  his  action  he 
armed  the  national  government  with  a power  to  free  the  Ameri- 
can name  from  the  disgrace  of  tolerating  the  slave-trade,  before 
it  was  effectually  put  down  by  any  other  people  in  Christendom, 
we  need  not  hesitate  to  rank  him  high  among  those  who  made 
great  sacrifices  for  the  general  welfare  of  the  country  and  the 
general  good  of  mankind.’ 


^ ’ 111  the  first  draft  of  tlie  Constitution  reported  by  the  Committee  of  Detail, 

It  was  provided  that  the  importation  of  sucli  persons  as  the  states  might  think 
proper  to  admit  should  not  be  prohibited.  Wiien  the  committee  to  arraiwe  if 
possible,  certain  TOiiiproniises  between  the  Northern  and  Southern  States”  vvas 
raised,  this  provision,  with  other  matters,  was  referred,  and  it  was  finally  agreed 
that  the  importation  should  not  be  prohibited  before  the  year  1808.  Aftw  the 
adoption  of  the  Constitution,  Congress,  by  the  acts  of  March  23d,  1794,  and  Mav 
10th,  1800,  prohibited  the  citizens  and  residents  of  the  United  States  from  carry- 
ing slaves  to  any  foreign  territory  for  the  purpose  of  traffic.  By  the  act  of 
March  2d,  1807,  the  importation  of  slaves  into  the  United  States  after  January  1 
1808,  was  prohibited  under  severe  penalties.  In  1818  and  1819  these  penalties 
were  further  increased,  and  in  1820  the  offence  was  made  piracy.  Althoiwh 
the  discussion  of  the  subject  commenced  in  England  at  about  the  same  time 
( 188),  It  was  nearly  twenty  years  before  a bill  could  be  carried  through  Parlia- 
ment for  the  abolition  of  the  traffic.  Through  the  whole  of  that  period,  and 
down  to  the  very  last,  counsel  were  repeatedly  heard  at  the  bar,  in  behalf  of 
interested  parties,  to  oppose  the  reform.  The  trade  was  finally  abolished  by  act 
of  Pailianient  in  March,  1807 ; it  was  made  a felony  in  1810,  and  declared  to  be 

tl'o  representatives  of  a few  of  the  Southern 
States  of  tins  Union  refused  to  consent  to  an  immediate  prohibition,  they  did 


308 


CONSTITUTIONAL  HISTORY. 


James  Wilson,  a signer  of  the  Declaration  of  Independence, 
and  one  of  the  early  judges  of  the  Supreme  Court  of  the  United 
States,  was  one  of  the  first  jurists  in  America  during  the  latter 
part  of  the  last  century. 

He' was  born  in  Scotland  about  the  year  1742.  After  studying 
at  Glasgow,  St.  Andrews,  and  Edinburgh,  he  emigrated  to  Penn- 
sylvania in  1766.  He  became,  soon  after  his  arrival,  a tutor  in 
the  Philadelphia  College,  in  which  place  he  acquired  great  distinc- 
tion as  a classical  scholar.  He  subsequently  studied  the  law,  and 
was  admitted  to  the  bar ; and,  after  practising  at  different  places, 
took  up  his  residence  at  Philadelphia,  where  he  continued  to  re- 
side during  the  rest  of  his  life.' 

For  six  years  out  of  the  twelve  that  elapsed  from  1775  to  the 
summoning  of  the  Convention  of  1787,  he  was  a member  of  Con- 
gress. Concerned  in  all  the  great  measures  of  independence,  the 
establishment  of  the  Confederation,  the  peace,  and  the  revenue 
system  of  1783,  he  had  acquired  a fund  of  political  experience 
Vvdiich  became  of  great  value  to  the  country  and  to  himself.  Al- 
though a foreigner  by  birth,  he  was  thoroughly  American  in  all 
his  sentiments  and  feelings,  and,  at  the  time  he  entered  the  Con- 
vention, there  were  few  public  men  in  the  country  who  perceived 
more  clearly  the  causes  of  the  inherent  weakness  of  the  existing 
government.  During  the  war  he  had  always  considered  the 
states,  with  respect  to  that  war,  as  forming  one  community ; " and 
he  did  not  admit  the  idea  that,  when  the  colonies  became  inde- 
pendent of  Great  Britain,  they  became  independent  of  each  other." 
From  the  Declaration  of  Independence  he  deduced  the  doctrine 
that  the  states  by  which  that  measure  was  adopted  were  inde- 
pendent in  their  confederated  character,  and  not  as  individual 


consent  to  engraft  upon  the  Constitution  what  was  in  etfect  a declaration  that 
tlie  trade  should  be  prohibited  at  a fixed  period  of  time;  and  the  trade  w'as 
thus  a1)olished  by  the  United  States,  under  a government  of  limited  powers, 
Avith  respect  to  their  own  territories,  as  soon  as  it  was  abolished  by  the  “om- 
nipotent” Parliament  of  Great  Britain.  Moreover,  by  consenting  to  give  to  the 
Union  the  power  to  regulate  commerce,  the  Southern  States  enabled  Congress 
to  abolish  the  slave-trade  with  foreign  countries  thirteen  years  before  the  same 
trade  was  made  unlawful  to  British  vessels. 

’ Enc}’clopgedia  Americana,  Art.  “ Wilson,  James.” 

2 Madison,  Elliot,  V.  78. 


3 Ibid.,  213. 


WILSON 


309 


communities.  This  rather  subtle  distinction  may  seem  now  to 
have  been  of  no  great  practical  moment,  since  the  Confederation 
had  actually  united  the  states  as  such,  rather  than  the  inhabitants 
of  the  states.  But  it  was  one  of  the  positions  assumed  by  those 
who  desired  to  combat  the  idea  that  the  states,  when  assembled 
in  Convention,  were  restrained,  by  their  position  as  equal  and 
inde})endent  sovereignties,  from  adopting  a plan  of  government 
founded  on  a representation  of  the  people.  To  this  objection  Mr. 
Milson  repeatedly  addressed  himself,  and  his  efforts  had  great 
influence  in  causing  the  adoption  of  the  principle  by  which  the 
people  of  the  states  became  directly  represented  in  the  govern- 
ment in  the  ratio  of  their  numbers.  He  showed  that  this  princi- 
ple had  been  improperly  violated  in  the  Confederation,  in  conse- 
quence of  the  urgent  necessity  of  forming  a union,  and  the  im- 
possibility at  that  time  of  forming  any  other  than  a union  of  the 
states.  As  a new  partition  of  the  states  was  now  impracticable, 
it  became  necessary  for  them  to  surrender  a portion  of  their  sov- 
ereignties, and  to  permit  their  inhabitants  to  enter  into  direct  re- 
lations with  a new  federal  union.  He  pointed  out  the  twofold 
relation  in  which  the  people  must  henceforth  stand — in  the  one, 
they  would  be  citizens  of  the  general  government ; in  the  other, 
they  would  be  citizens  of  their  particular  state.  As  both  govern- 
ments were  derived  from  the  people,  and  both  were  designed  for 
them,  both  ought  to  be  regulated  on  the  same  principles.  In  no  ' 
other  way  could  the  larger  states  consent  to  a new  union ; and  if 
the  smaller  states  could  not  admit  the  justice  of  a proportionate 
representation,  it  was  in  vain  to  expect  to  form  a constitution  that 
would  embrace  and  satisfy  the  whole  country. 

This  great  idea  of  a representative  government  was  in  fact  the 
aim  of  all  Mr.  Wilson’s  exertions ; and  when  the  Constitution  was 
foinied,  he  enforced  this  idea  in  the  Convention  of  Pennsylvania 
with  singular  power.  His  speech  in  that  body  is  one  of  the  most 
comprehensive  and  luminous  commentaries  on  the  Constitution 
that  have  come  down  to  us  from  that  period.  It  drew  from 
M^ashington  a high  encomium,  and  it  gained  the  vote  of  Penn- 
sylvania for  the  new  government,  against  the  ingenious  and  cap- 
tivating objections  of  its  opponents. 

The  life  of  this  wise,  able,  and  excellent  man  was  comparative- 
ly short.  In  li89  he  was  appointed  by  Washington  a judge  of 


310  CONSTITUTIONAL  HISTORY. 

tiie  Supreme  Court  of  the  United  States.  While  on  a circuit  in 
North  Carolina,  in  the  year  1798,  he  died  at  Edenton,  at  about  the 
age  of  fifty-six.  The  character  of  his  mind  and  the  sources  of  his 
intiuence  will  be  best  appreciated  by  examining  some  of  the  more 
striking  passages  of  his  principal  speech  on  the  Constitution, 
made  in  the  Convention  of  Pennsylvania.' 

Edmund  Kandolph,  a ''  child  of  the  Eevolution,”  " was  governor 
of  Yirffinia  at  the  time  of  the  Federal  Convention.  Probably  it 
was  on  account  of  his  position  as  the  chief  magistrate  of  the  state 
that  he  was,  by  the  general  consent  of  his  colleagues,  selected  to 
bring  forward  the  Virginia  plan  of  government,  which  was  sub- 
mitted at  an  early  period  of  the  deliberations,  and  which  became, 
after  great  modifications,  the  nucleus  of  the  Constitution. 

At  an  early  age,  in  August,  1775,  Eandolph  joined  the  army 
at  Cambridge,  and  was  immediately  taken  into  Washington’s 
military  family  as  an  aide-de-camp.^  He  served  in  this  capacity, 
however,  no  longer  than  until  the  following  November,  when  he 
was  suddenly  recalled  to  Virginia  by  the  death  of  his  relative,  Pey- 
ton Eandolph,  the  president  of  the  First  Continental  Congress. 

In  1779  he  became  a member  of  Congress  from  Virginia,  and 
served  until  March,  1782. 

In  1786  he  was  elected  governor  of  Virginia,  succeeding  in 
that  office  Patrick  Henry.  In  this  capacity  it  became  his  duty  to 
secure  the  attendance  of  Washington  upon  the  Federal  Conven- 
tion. This  matter  he  managed  with  great  tact  and  delicacy ; and, 
by  the  aid  of  other  friends,  he  succeeded  in  overcoming  the 
scruples  of  the  illustrious  patriot  then  reposing  in  the  retirement 
of  Mount  Vernon. 

Governor  Eandolph’s  conduct  with  regard  to  the  Constitution 
might  seem  to  be  marked  by  inconsistency,  if  we  were  not  able 
to  explain  it  by  the  motive  of  disinterested  patriotism  from  which 
he  evidently  acted.  He  brought  to  the  Convention  the  most  seri- 
ous apprehensions  for  the  fate  of  the  Union.  But  he  thought 


> Elliot’s  Debates,  II.  423,  424,  524-529. 

2 His  own  description  ofliiinself  in  a speech  made  in  the  Virginia  Conven- 
tion which  ratified  the  Constitution.  Elliot,  HI.  65. 

^ Washington's  Writings,  IX.  66. 


RAND  O L P II. 


311 


that  tlic  dangers  with  wliicli  it  was  suiToiinded  rniglit  be  avert- 
ed, by  correcting  and  enlarging  the  Articles  of  Confederation. 
AVdien,  at  length,  the  government  which  was  actually  framed  Avas 
found  to  be  a system  containing  far  greater  restraints  upon  the 
powers  of  the  states  than  he  believed  to  be  either  expedient  or 
safe,  he  endeavored  to  procure  a vote  authorizing  amendments  to 
be  submitted  by  the  state  conventions  and  to  be  finally  decided 
on  by  another  general  con\^ention.  This  proposition  having  been 
rejected,  he  declined  to  sign  the  Constitution,  desiring  to  be  free 
to  oppose  or  advocate  its  adoption,  when  it  should  come  before 
his  own  state,  as  his  judgment  might  dictate. 

When  the  time  for  such  action  came  he  satv  that  the  rejection 
of  the  Constitution  must  be  followed  by  disunion.  He  had  wearied 
himself  in  endeavoring  to  find  a possibility  of  preserving  the 
Union  Avithout  an  unconditional  ratification  by  Virginia.  To 
the  people  of  Virginia,  therefore,  he  painted  with  great  force  and 
eloquence  the  consequences  of  their  becoming  severed  from  the 
rest  of  the  country.  Virginia  Avas  not,  he  said,  invulnerable.  She 
Avas  accessible  to  a foreign  enemy  by  sea,  and  through  the  Avaters 
of  the  Chesapeake.  Her  situation  by  land  Avas  not  less  exposed. 
Her  frontiers  adjoined  the  states  of  Pennsylvania,  Maryland,  and 
Horth  Carolina.  With  the  first  she  had  long  had  a disputed 
boundary,  concerning  Avhich  there  had  been  imminent  danger  of  a 
Avar,  that  had  been  aAwted  AAuth  the  greatest  difficulty.  With 
Maryland  there  Avas  an  ancient  controversy  upon  the  naAugation 
of  the  Potomac,  and  that  controversy,  if  decided  on  grounds  of 
strict  right,  Avould  be  determined  by  the  charter  of  Maryland  in 
favor  of  that  state.  With  JSTorth  Carolina,  too,  the  boundary  was 
still  unsettled.  Let  them  call  to  mind,  then,  the  history  of  every 
part  of  the  Avorld  Avhere  independent  nations  bordered  in  the 
same  AA^ay  on  one  another.  Such  countries  had  ever  been  a per- 
petual scene  of  bloodshed ; the  inhabitants  of  one  escaping  from 
punishment  into  the  other — protection  given  to  them — consequent 
pursuit,  violence,  robbery,  and  murder.  A numerous  standing 
army,  that  dangerous  expedient,  could  alone  defend  such  borders. 

On  her  Avestern  frontier  Virginia  Avas  peculiarly  exposed  to 
the  saA^ages,  the  natural  enemies  of  the  AAdiite  race,  Avhoni  foreign 
gold  could  alAvays  incite  to  commit  the  most  horrible  ra Adages  upon 
her  people.  Her  slave  population,  bearing  a very  large  propor- 


CONSTITUTIONAL  HISTORY. 


312 

tion  to  the  Avliites/  necessarily  weakened  her  capacity  to  defend 
herself  against  such  an  enemy. 

Virginia,  then,  must  be  defended.  Could  they  rely  on  the 
militia  ? Their  militia  did  not,  at  the  utmost,  exceed  sixty  thou- 
sand men.  They  had  performed  exploits  of  great  gallantry  dur- 
ins:  the  late  war,  but  no  militia  could  be  relied  on  as  the  sole  pro- 
tectors  of  any  country.  Besides,  a part  of  them  would  be  wanted 
for  the  purposes  of  agriculture,  for  manufactures,  and  for  the 
mechanic  arts  necessary  for  the  aid  of  the  farmer  and  the  planter. 
They  must  have  an  army  ; and  they  must  also  have  a navy.  But 
how  were  these  to  be  maintained  without  money?  The  enor- 
mous debt  of  Virginia,  including  her  proportion  of  the  continen- 
tal debts,  was  already  beyond  her  ability  to  pay  from  any  reve- 
nue that  could  be  derived  from  her  present  commerce. 

Tn  this  state  of  things,  looking  forward  to  the  consequences  of 
a dissolution  of  the  Union,  he  could  not  but  remind  the  people  of 
Virginia  of  what  took  place  in  1781,  when  the  power  of  a dicta- 
tor was  given  to  the  commander-in-chief,  to  save  the  country  from 
destruction.  At  some  period,  not  very  remote,  might  not  their 
future  distress  impel  them  to  do  what  the  Dutch  had  done — throw 
all  power  into  the  hands  of  a stadtholder?  How  inlinitely  more 
wise  and  eligible  than  this  desperate  alternative  would  be  a union 
with  their  American  brethren.  I have  labored,”  said  he,  “ for 
the  continuance  of  the  Union — the  rock  of  our  salvation.  I be- 
lieve, as  surely  as  that  there  is  a God,  that  our  safety,  our  politi- 
cal happiness  and  existence,  depend  on  the  union  of  the  states ; 
and  that,  without  this  union,  the  people  of  this  and  the  other 
states  will  undergo  the  unspeakable  calamities  which  discord,  fac- 
tion, turbulence,  war,  and  bloodshed  have  produced  in  other  coun- 
tries. The  American  spirit  ought  to  be  mixed  with  American 
pride.;  to  see  the  Union  magnificently  triumphant.  Let  that  glorious 
pride  which  once  defied  the  British  thunder  reanimate  you  again. 
Let  it  not  be  recorded  of  Americans  that,  after  having  performed 
the  most  gallant  exploits,  after  having  overcome  the  most  astonish- 
iog  difiiculties,  and  after  having  gained  the  admiration  of  the 
v\^orld  by  their  incomparable  valor  and  policy,  they  lost  their  ac- 

1 He  stated  the  mimber  of  blacks  to  be  230,000,  and  that  of  the  whites  only 
352,000. 


KANDOLPII. 


313 


qiiired  reputation,  their  national  consecpience  and  liappiness,  by 
their  own  indiscretion.  Let  no  future  historian  inform  posterity 
that  they  wanted  wisdom  and  virtue  to  concur  in  any  regular, 
elticient  government.  Should  any  writer,  doomed  to  so  disagree- 
able a task,  feel  the  indignation  of  an  honest  historian,  he  would 
reprehend  our  folly  with  equal  severity  and  justice.  Catch  the 
l)resent  moment— seize  it  with  avidity — for  it  may  be  lost,  never 
to  be  regained ! If  the  Union  be  now  lost,  I fear  it  Avill  remain 
so  forever.  I believe  gentlemen  are  sincere  in  their  opposition, 
and  actuated  by  pure  motives ; but  when  I maturely  weigh  the 
advantages  of  the  Union,  and  the  dreadful  consequences  of  its  dis- 
solution ; when  I see  safety  on  my  right,  and  destruction  on  my 
left ; when  I behold  respectability  and  happiness  acquired  by  one 
course,  but  annihilated  by  the  other — I cannot  hesitate  in  my 
decision.” ' 

The  nine  persons  of  whom  some  account  has  now  been  given 
were  the  most  important  members  of  the  Convention,  and  those 
who  exercised  the  largest  influence  upon  its  decisions.  But  the 
entire  list  embraced  other  men  of  great  distinction  and  ability, 
celebrated,  before  and  since  the  Convention,  in  that  period  of  the 
political  history  of  America  which  commenced  with  the  Ke volution 
and  closed  with  the  eighteenth  century.  Such  were  Eoger  Sher-  / 
man  of  Connecticut,  Robert  Morris  of  Pennsylvania,  John  Dickin- 
son of  Delaware,  John  Rutledge  and  Charles  Pinckney  of  South 
Carolina,  and  George  Mason  of  Virginia.  Of  the  rest,  all  were 
men  of  note  and  influence  in  their  respective  states,  possessing  the 
full  confidence  of  the  people  whom  they  represented. 

The  whole  assembly  consisted  of  only  fifty-five  members, 
representing  twelve  states.=^  That  so  small  a body  should  have 
contained  so  large  a number  of  statesmen  of  pre-eminent  ability 
is  a striking  proof  of  the  nature  of  the  crisis  which  called  it  into 
existence.  The  age  which  had  witnessed  the  Revolution,  and 
the  wants  and  failures  that  succeeded  it,  produced  and  trained 
these  men,  made  them  capable  of  the  highest  magnanimity,  and 
gave  them  the  intellectual  power  necessary  to  surmount  the  difii- 


I Debates  in  the  Virginia  Convention,  Elliot,  III.  65-86. 

^ For  a full  list  of  the  delegates,  see  the  Appendix  to  this  volume. 


CONSTITUTIONAL  HISTORY. 


31L 

culties  that  obstructed  the  progress  of  their  country  to  prosperity 
and  renown.  These,  with  a few  of  their  contemporaries  at  that 
moment  engaged  in  other  spheres  of  public  duty,  are  the  men  who 
illustrate  and  adorn  it,  and  the  knowledge  of  their  lives  and  actions 
is  of  unspeakable  importance  to  the  people  of  the  United  States. 

Note.— For  the  following  account  of  the  genealogy  of  Governor  Randolph, 
I am  indebted  to  one  of  his  female  descendants. 

Edmund  Randolph  was  the  son  of  John  Randolph  and  grandson  of  Sir  John 
Randolph,  each  of  whom  was  attorney-general  of  the  colony  under  the  royal 
government.  He  was  educated  at  William  and  Mary’s  College.  Peyton  Ran- 
dolph, President  of  the  First  Continental  Congress,  was  also  a son  of  Sir  John 
Randolph,  and  uncle  of  Edmund  Randolph,  to  whom  he  devised  his  estate. 
Sir  John  Randolph  was  one  of  five  or  six  sons  of  William  Randolph  of  Turkey 
Island  in  Virginia,  from  whom  all  the  Randolphs  in  Virginia  are  descended. 
Of  this  William  Randolph  little  is  known,  beyond  the  fact  that  he  was  a large 
landholder,  and  a nephew  of  Thomas  Randolph,  the  poet,  who  flourished  in  the 
reigns  of  James  I.  and  Charles  I.,  1005-1634. 


CHAPTEK  XYIL 

I RELIMINARY  CONSIDERATIONS. ORGANIZATION  OF  THE  CONVENTION. 

— Position  of  the  States. — Eule  of  Investigation.  ■ 

Having  sketched  the  struggles,  the  errors,  and  the  disappoint- 
ments of  the  earlier  years  of  our  constitutional  history,  I now  come 
to  consider  the  proceedings  of  that  memorable  assembly  to  which 
they  ultimately  led,  in  order  to  describe  the  character  of  an  era 
that  offered  the  alternatives  of  a more  vigorous  nationality  and 
final  dissolution.  How  the  people  of  the  United  States  were 
enabled  to  seize  the  happy  choice  of  one  of  these  results,  and  to 
escape  the  disasters  of  the  other,  is  to  be  learned  by  examining 
the  mode  in  which  the  Constitution  of  the  United  States  was 
framed. 

In  approaching  this  interesting  topic,  I am  naturally  anxious 
to  place  myself  at  once  on  a right  understanding  with  the  reader— 
to  apprise  him  of  the  purpose  of  the  discussions  to  which  he  is  in- 
vited, and  to  guard  against  expectations  which  might  be  enter-  ‘ 
tained,  but  which  will  not  be  fulfilled. 

In  a work  designed  for  general  and — as  I venture  to  hope  it 
may  prove— for  popular  use,  it  would  be  out  of  place,  as  it  cer- 
tainly would  be  impracticable  within  the  limits  of  a single  volume, 
to  undertake  the  explanation  and  discussion  of  all  those  particular 
questions  of  construction  that  must  constantly  arise  under  almost 
every  clause  and  feature  of  such  an  instrument  as  the  Constitu- 
tion of  the  United  States,  and  which,  as  our  whole  experience  has 
taught  us,  are  fruitful  both  of  extensive  debate  and  of  wide  as  well 
as  honest  diversities  of  opinion.  I shall  consider  questions  of  con- 
struction only  so  far  as  may  be  necessary  to  elucidate  my  subject ; 
for  I propose,  in  writing  the  history  of  the  formation  of  the  Con- 
stitution, to  describe  rather  those  great  modifications  in  the  prin- 
ciples and  structure  of  the  Union  that  took  place  in  the  period  at 
which  we  have  now  arrived  in  the  course  of  this  work ; to  state 


31G 


CONSTITUTIONAL  HISTORY. 


the  essential  features  of  the  new  government ; and  to  trace  the 
process  by  which  they  were  evolved  from  the  elements  to  which 
tlie  framers  of  that  government  resorted. 

Happily  for  us,  the  materials  for  such  a description  are  ample. 
The  whole  civil  change  which  transformed  the  character  of  our 
Union,  and  established  for  it  a national  government,  took  place 
peacefully  and  quietly,  within  a single  twelvemonth.  It  was  at- 
tended with  circumstances  which  enable  us  to  ascertain  its  char- 
acter with  a high  degree  of  certainty.  The  leading  purposes  that 
were  entertained  and  carried  out  were  not  left  to  the  conjecture 
of  posterity,  but  were  recorded  by  deliberative  assemblies,  whose 
acts  of  themselves  expressed  and  ascertained  the  objects  and  in- 
tentions of  the  national  will.  First  framed  by  an  assembly  in 
which  the  states  participating  in  the  change  were  fully  repre- 
sented, and  subsequently  debated  and  ratified  in  conventions  of 
the  people  in  the  separate  states,  the  general  nature  and  design 
of  the  Constitution  may  be  traced  and  understood  without  serious 
difficulty. 

But  to  the  right  understanding  of  its  nature  and  objects  a 
careful  examination  of  the  proceedings  of  the  national  Conven- 
tion is,  in  the  first  place,  essential.  Before  we  enter,  however, 
upon  this  examination,  there  are  certain  preliminary  facts  that 
explain  the  circumstances  in  which  the  Convention  was  assembled, 
and  which  will  enable  us  to  appreciate  the  results  at  which  it  ar- 
rived. To  these,  therefore,  the  reader  is  now  desired  to  turn. 

First  of  all,  then,  it  is  to  be  remembered  that  the  national  Con- 
vention of  1787  was  assembled  with  the  great  object  of  framing  a 
system  of  government  for  the  united  interests  of  the  thirteen  states, 
by  which  the  forms  and  spirit  of  republican  liberty  could  be  pre- 
served. The  warnings  and  teachings  of  the  ten  preceding  years, 
w^hich  I have  described  in  a previous  part  of  this  volume,  had  pre- 
sented to  the  people  of  these  states  the  serious  question  whether 
their  system  of  conducting  their  common  affairs  then  rested  upon 
principles  that  could  secure  their  permanent  prosperity  and  hap- 
piness. That  the  states  had  national  interests  j that  each  of  them 
stood  in  relations  to  the  others,  and  to  the  rest  of  the  world,  which 
its  separate  and  unaided  power  was  unable  to  manage  with  suc- 
cess ; and  that  even  its  own  internal  peace  and  security  required 
some  external  protection,  had  been  brought  home  to  the  convic- 


REPUBLICAN  FREEDOM. 


317 


tions  of  the  pco])le  by  an  ex])erience  tliat  commenced  vvitli  the 
day  on  whicli  tliey  declared  themselves  independent,  and  had 
now  forced  upon  them  its  last  stern  and  sorrowful  lesson  in  the 
general  desjamdency.  As  tliey  turned  anxiously  and  fearfully 
to  the  near  and  dear  interests  involved  in  their  separate  and 
internal  concerns,  they  saw  that  self-government  was  a neces- 
sity of  their  existence.  Tliey  saw  that  equality  before  the  law  for 
the  Avhole  jieople;  the  right  and  the  power  to  appoint  their  own 
rulers ; the  right  and  the  power  to  mould  and  form  and  modify 
every  law  and  institution  at  their  own  sovereign  will,  to  lay  re- 
straints upon  their  own  power,  or  not  to  lay  them,  to  limit  them- 
selves by  public  compact  to  a particular  mode  of  action,  or  to  re- 
main free  to  choose  other  modes,  were  the  essential  conditions  of 
American  society.  In  a word,  they  beheld  that  republican  and 
constitutional  liberty,  which,  with  all  that  it  comprehends  and  all  V 
that  it  bestows,  was  not  only  altogether  lovely  in  their  eyes,  but 
without  which  there  could  be  no  peace,  no  social  order,  no  tran- 
quillity, and  no  safety  for  them  and  their  posterity. 

This  liberty  they  knew  must  be  preserved.  They  loved  it  with 
jiassionate  devotion.  They  had  been  trained  for  it  by  the  whole 
course  of  their  political  and  social  history.  They  had  fought  for 
it  through  a long  and  exhausting  war.  Their  habits  of  tLught 
and  action,  their  cherished  principles,  their  hopes,  their  life  as  a peo- 
ple, were  all  bound  up  in  it ; and  they  knew  that,  if  they  suffered 
It  to  be  lost,  there  would  remain  for  them  nothing  but  a heritao-e 
Ol  shame,  and  ages  of  confusion,  strife,  and  sorrow. 

Great  as  was  their  devotion  to  this  republican  liberty  and 
ai-dent  as  was  their  love  of  it,  they  did  not  value  it  too  highly. 

The  doctrine  that  alt  power  resides  originally  in  the  people ; that 
they  are  the  source  of  all  law ; that  their  will  is  to  be  pronounced 
by  a majority  of  their  numbers,  and  can  know  no  interruption, 
was  not  first  discovered  in  America.  But  to  this  principle  of  a de- 
mocracy the  people  of  the  American  states  had  added  two  real 
and  important  discoveries  of  their  own.  They  had  ascertained 
that  their  own  power  might  be  limited  by  compacts  which  would 
regulate  and  define  the  modes  in  which  it  shall  be  exercised. 
Their  written  constitutions  had  taken  the  place-  of  the  royal 
charters  which  formerly  embraced  the  fundamental  conditions 
of  their  political  existence,  but  with  this  essential  difference— that 


313  CONSTITUTIONAL  HISTORY. 

whereas  the  charter  emanated  from  a foreign  sovereign  to  those 
who  claimed  no  original  authority  for  themselves,  the  Constitu- 
tion proceeded  from  the  people,  who  claimed  all  authority  to  be 
resident  in  themselves  alone.  While  the  charter  embraced  a com- 
pact between  the  foreign  sovereign  and  his  subjects  who  lived 
under  it,  the  Constitution,  framed  by  the  people  for  their  own 
guidance  in  exercising  their  sovereign  power,  became  a compact 
between  themselves  and  every  one  of  their  number.  In  this  sub- 
stitution of  one  supreme  authority  for  another,  some  limitation  of 
the  mode  in  which  the  sovereign  power  was  to  act  became  the 
necessary  consequence  of  the  change;  for  as  soon  as  the  people 
had  declared  and  established  their  own  sovereignty,  some  declara- 
tion of  the  nature  of  that  sovereignty,  and  some  prescribed  rules 
for  its  exercise,  became  immediately  necessary,  and  that  declara- 
tion and  those  rules  became  at  once  a limitation  of  power,  extend- 
ing to  every  citizen  the  protection  of  every  principle  involved  in 
them,  until  the  same  authority  which  had  established  should  change 

them.  . 

Against  the  evils,  too,  that  might  arise  from  the  unrestricted 

control  of  a majority  of  the  people  over  the  fundamental  law— 
ao-ainst  the  abuse  of  their  power  by  frequent  and  passionate 
cLnges  of  the  rules  which  limit  its  exercise  for  the  time  being 
—they  had  discovered  the  possibility  of  limiting  the  mode  in 
whicli  the  organic  law  itself  was  to  be  changed.  By  prescribing 
certain  forms  in  which  the  change  ivas  to  be  made,  and  especially 
by  requiring  the  fact  that  a change  had  been  decreed  by  those 
having  a right  to  make  it  to  be  clearly  and  carefully  ascertained 
by  a particular  evidence,  they  guarded  the  fundamental  law  itself 
against  usurpation  and  fraud,  and  greatly  diminished  the  influ- 
ences  of  haste,  prejudice,  and  passion. 

Such  was  the  nature  of  American  republican  liberty  ; not  then 
fully  understood,  not  then  fully  developed  in  all  the  states,  but  yet 

discovered a liberty  more  difiicult  of  attainment,  more  elaboiate 

in  its  structure,  and  therefore  more  needful  of  defence,  than  any 
of  the  other  forms  of  constitutional  freedom  under  w'hich  civilized 

man  had  hitherto  been  found.  ^ 

Now',  the  fate  of  republican  liberty  in  America,  at  that  day, 
depended  directly  upon  the  preservation  of  some  union  of  the 
states,  and  not  simply  upon  the  existing  state  institutions,  or  upon 


REPUBLICAN  FREEDOM. 


319 

the  desires  of  the  people  of  each  separate  state.  It  is  true  that 
their  previous  training  and  history,  and  their  own  intelligent 
choice,  had  made  the  states,  in  all  their  forms  and  principles,  re- 
publican governments ; and  almost  all  of  them  had,  at  this  period, 
written  constitutions,  in  wdiich  the  American  ideal  of  such  gov- 
cinments  vas  aimed  at,  and  more  or  less  nearly  reached.  But 
how  long  Avere  these  constitutions,  these  republican  forms,  to  exist? 
AVhat  ^vas  to  secure  them  ? Who  was  to  stand  as  their  guarantor 
and  protector,  and  to  vindicate  the  right  of  the  majority  to  gov- 
ern and  alter  and  modify  ? Who  was  to  enforce  the  rules  which 
the  people  of  a state  had  prescribed  for  their  own  action,  when 
threatened  by  an  insurgent  and  powerful  minority?  Who  was 
to  protect  them  against  foreign  invasion  or  domestic  violence? 
There  was  no  common  sovereign,  or  supreme  arbiter,  to  w^hom 
they  could  all  alike  appeal.  , There  was  no  power  upon  this  broad 
continent  to  whom  the  states  could  intrust  the  duty  of  preserving 
their  institutions  inviolate,  except  the  people  of  the  United  States 
in  some  united  and  sovereign  capacity.  ]^o  single  state,  however 
gieat  its  territory  or  its  population,  could  have  discharged  these 
duties  for  itself  by  its  unaided  power ; for  no  one  of  them  could 
have  repelled  a foreign  invasion  alone,  and  the  government  of  one 
of  the  most  respectable  and  oldest  of  them,  whose  people  had  ex- 
hibited as  much  energy  as  any  other  community  in  America,  had 
almost  succumbed  to  the  first  internal  disorder  which  it  had  been  * 
forced  to  encounter. 

/The  preservation  of  the  union  of  the  states  was,  therefore,  es- 
sential  to  the  continuance  of  their  independence,  and  to  the  con- 
tinuance of  republican  constitutional  liberty— of  that  liberty  which  X 

resides  in  law  duly  ascertained  to  be  the  authentic  will  of  a ma- 
jority, j With  this  vastly  important  object  before  them,  the  peo- 
ple of  the  states  could  give  to  the  Union  no  form  that  would 
not  reflect  the  same  spirit,  and  harmonize  with  the  nature  of 
their  existing  institutions.  To  have  left  their  state  governments 
resting  upon  the  broad  basis  of  popular  freedom  acting  through 
republican  forms,  and  to  have  framed,  or  to  have  attempted  to 
frame,  national  institutions  on  any  other  model,  would  have  been 
an  act  of  political  suicide.  To  enable  the  Union  to  preserve  and 
uphold  the  authonty  of  the  people  within  the  respective  states,  it 
mast  itself  be  founded  on  the  same  authority,  must  embody  the 


320 


CONSTITUTIONAL  HISTORY. 

same  principles,  spring  from  the  same  source,  and  act  through 
similar  institutions.^ 

Accordingly,  the  student  of  this  portion  of  our  history  will  find 
everywhere  the  clearest  evidence  that,  so  far  as  the  purpose  of 
forming  a national  government  of  a new  character  was  entertained 
at  the  period  when  the  Convention  was  assembled,  ^ republican 
form  for  that  government  was  a foregone  conclusion.  | Not  only 
did  no  state  entertain  any  purpose  but  this,  but  no  member  of  the 
Convention  entered  that  body  with  any  expectation  of  a different 
result.  There  is  but  one  of  the  statesmen  composing  that  assembly 
to  whom  a purpose  of  creating  what  has  been  called  a monarchical 
government  has  ever  been  distinctly  imputed ; and  with  regard  to 
him,  as  much  as  to  every  other  person  in  the  Convention,  I shall 
show  that  the  imputation  is  unjust.  Hamilton— for  it  is  to  him, 
of  course,  that  I now  allude— together  with  many  others,  believed 
that  a failure,  at  that  crisis,  to  establish  a government  of  sufficient 
enei’o’y  to  pervade  the  whole  Union  with  the  necessary  control, 
woufd  bring  on  at  once  a state  of  things  that  must  end  in  military 
despotism.  ° Hence  his  efforts  to  give  to  the  republican  form,  which 
he  acknowledged  to  be  the  only  one  suited  to  the  circumstances 
and  condition^of  the  country,  the  highest  degree  of  vigor,  stability, 
and  power  that  could  be  attained. 

Another  very  important  fact,  which  the  reader  is  to  carry 
alono-  with  him  into  the  examination  of  the  proceedings  of  the 
Convention,  is,  that  by  the  judgment  of  the  old  Congress,  and  of 
every  state  in  the  IJnion  save  one,'  the  Confederation  had  been 
declared  defective  [and  inadequate  to  the  exigencies  of  govern- 
ment and  the  preservation  of  the  Union.  That  this  declaration 
was  expressly  intended  to  embrace  the  principle  of  the  Union,  or 
looked  to  the  substitution  of  a system  of  representative  govern- 
ment, to  which  the  people  of  the  states  should  be  the  immediate 
parties,  in  the  place  of  their  state  governments,  does  not  appear 
from  the  proceedings  which  authorized  and  constituted  the  Con- 
vention. I In  substance,  those  proceedings  ascertained  that  there 
were  great  defects  in  the  existing  Confederatioiiy^  that  there  were 
important  purposes  of  the  federal  Union  which  it  had  failed  to 
secure ; and  that  a convention  of  all  the  states,  for  the  purpose 


1 Rhode  Island. 


p:xigp:ncies  tup:  union.  32p 

of  revising  and  amending  the  Articles  of  Confederation,  was  the 
most  probable  means  of  establishing  a firm  general  government, 
and  was  therefore  to  be  held.  But  what  were  the  original  pur- 
poses of  the  Union,  or  what  purposes  had  come  to  be  regarded  as 
essential  to  the  public  welfare,  was  not  indicated  in  most  of  the 
acts  constituting  the  Convention.  Virginia,  whose  declaration 
preceded  that  of  Congress  and  of  the  other  states,  and  on  Avhose 
recommendation  they  all  acted,  had  made  the  commercial  inter- 
ests of  the  United  States  the  leading  object  of  the  proposed  assem- 
bly; but  she  had  also  declared  the  necessity  of  extending  the 
revision  of  the  federal  system  to  all  its  defects,  and  had  advised 
further  concessions  and  provisions,  in  order  to  secure  the  great 
objects  for  Avhicli  that  system  Avas  originally  instituted.  These 
general  and  some\Adiat  indefinite  purposes  AA^ere  declared  by  the 
other  states,  without  any  material  variation  from  the  terms  em- 
ployed by  Virginia.^ 

Hence  it  is  that  the  previous  history  of  the  Union  becomes  im- 
portant to  be  examined  before  Ave  can  appreciate  the  great  general 
purposes  of  its  original  formation,  as  they  Avere  understood  at  the 
time  of  these  proceedings,  or  can  appreciate  the  further  purposes 
that  Avere  intended  to  be  engrafted  upon  it.  The  declarations 
made  by  the  Congress  and  the  states  seem  obviously  to  embrace 
two  classes  of  objects ; the  one  is  Avhat,  in  the  language  of  Vir- 
ginia, they  conceived  to  have  been  t the  great  objects  for  which 
the  federal  government  was  instituted  the  other  is  the  exi- 
gencies of  the  Union,’|for  peace  as  Avell  as  for  war,  as  they  had 
been  displayed  and  developed  by  the  defects  of  the  Confederation, 
and  by  its  failures  to  secure  the  general  Avelfare.  The  first  of 
these  classes  of  objects  could  be  ascertained  by  reference  to  the 
terms  and  provisions  of  the  Articles  of  Confederation ; the  second 
could  only  be  ascertained  by  resorting  to  the  history  of  the  con- 
federacy, and  by  regarding  its  recorded  failures  to  promote  the 
general  prosperity  as  proofs  of  what  the  exigencies  of  the  Union 
demanded  in  a general  goA^ernment.' 

^ New  Jersey  specifically  contemplated  a regulation  of  commerce.  See  the 
proceedings  of  Congress,  and  those  of  the  states,  ante,  pp.  244,  248,  notes. 

Thus,  for  example,  the  regulation  of  commerce  was  not  one  of  the  original 
purposes  for  which  the  Union  was  formed  in  1775  or  in  1781.  But  it  became  one 
of  the  exigencies  of  the  Union,  by  becoming  a national  want,  and  by  the  revealed 

I.— 21 


Qo  CONSTITUTIONAL  HISTORY.  ^ 

_xi  the  early  part  of  this  volume  we  have  examined  the  nature 
and  operation  of  the  previous  Union,  in  both  of  its  aspects,  and 
we  must  carry  the  results  of  that  examination  along  with  us  in  . 
studying  the  formation  of  the  new  system.  We  have  seen  the 
character  of  the  Union  which  was  formed  by  the  assembling  of 
the  Eevolutionary  Congress,  to  enable  the  states  to  secure  their 
independence  of  the  crown  of  Great  Britain.  We  have  seen  that, 
from  the  jealousies  of  the  states,  even  this  Congress  never  assumed 
the  whole  revolutionary  authority  which  its  situation  and  office 
would  have  entitled  it  to  exercise.  We  have  seen  also,  that,  from 
the  want  of  a properly  defined  system,  and  from  the  absence  of  all 
proper  machinery  of  government,  it  was  unable  to  keep  an  ade- 
quate army  in  the  field,  until,  in  a moment  of  extreme  emergency, 
it  conferred  upon  the  commander-in-chief  the  powers  of  a dictator. 
We  have  witnessed  the  establishment  of  the  Confederation  — a 
government  which  bore  within  itself  the  seeds  of  its  own  destruc- 
tion ; for  it  relied  entirely,  for  all  the  sinews  of  war,  upon  requi- 
sitions on  the  states,  with  which  the  states  perpetually  refused  or 
neglected  to  comply.  We  have  thus  seen  the  war  lingering  and 
languishing  until  foreign  aid  could  be  procured,  and  until  loans 
of  foreign  money  supplied  the  means  of  keeping  it  alive  long- 
enough  for  the  admirable  courage,  perseverance,  and  energy  of 
Washington  to  bring  it  to  a close,  against  all  obstacles  and  all 
defects  of  the  civil  power.  When  the  war  was  at  length  ended, 
and  the  duty  of  paying  the  debts  thus  incurred  to  the  meritorious 
and  generous  foreign  creditor,  and  the  more  than  meritorious  and 
generous  domestic  creditor,  pressed  upon  the  conscience  of  the 
country,  we  have  seen  that  there  was  no  power  in  the  Union  to 
command  the  means  of  paying  even  the  interest  on  its  obligations. 
We  have  seen  that  the  treaty  of  peace  could  not  be  executed ; 
that  the  Confederation  could  do  nothing  to  secure  the  republican 
governments  of  the  states  ; that  the  commei’ce  of  the  country 
could  not  be  protected  against  the  policy  of  foreign  governments, 
constantly  watching  for  advantages  which  the  clashing  interests 
of  the  different  states  at  all  times  held  out  to  them  ; and  that, 

incompetency  ot  most  of  the  states  to  deal  with  the  subject  so  as  to  promote  theii 
own  welfare,  or  to  avoid  injury  to  their  confederates.  So  of  a great  many  other 
things,  for  wliich  we  must  resort,  as  tlie  framers  of  the  Constitution  resorted,  to 
the  history  of  the  times. 


DOUBTS  RESPECTING  POWER  323 

witli  the  rule  wliich  required  tlie  assent  of  nine  states  to  every 
ini})ortant  measure,  it  was  possible  for  the  Congress  to  refuse  or 
neglect  to  do  wnat  it  was  of  the  last  importance  to  the  people  of 
the  United  states  they  should  do.  Finally,  we  have  seen  that 
what  now  kept  the  existing  Union  from  dissolution,  as  it  had  been 
one  immediate  inducement  to  its  formation,  was  the  cession  of  the 
vast  Northwestern  Territory  to  the  United  States;  and  that  over 
this  territory  new  states  were  forming,  to  take  their  places  in  the 
band  of  American  republics,  while  the  Confederation  possessed  no 
sufficient  power  to  legislate  for  their  condition,  or  to  secure  their 
progress  towards  the  great  ends  of  civil  liberty  and  prosperity. 

A retrospection,  therefore,  of  the  previous  history  of  the  Con- 
federacy, wnile  it  reveals  to  us  the  public  appreciation  of  the 
national  wants  and  the  national  failures,  displays  the  general  pur- 
poses contemplated  by  the  states  when  they  undertook  effectually 
to  provide  for  the  exigencies  of  the  Union.”  But  what  the  nat- 
ure of  the  proposed  changes  was  to  be,  and  in  what  mode  they 
were  to  be  reached,  was,  as  we  have  seen,  left  undetermined  by 
the  constituent  states  when  they  assembled  the  Convention  ; and 
A\  e are  now,  therefore,  brought  to  the  third  preliminary  fact,  neces- 
sary to  be  regarded  in  our  future  inquiries,  namely,  the  condition 
of  the  actual  powers  of  that  assembly. 

The  Confederation  has  already  been  described  as  a league,  or  » 
federal  alliance  between  independent  and  sovereign  states,  for  cer- 
tain purposes  of  mutual  aid.  So  far  as  it  could  properly  be  called 
a government,  it  was  a government  for  the  states  in  their  corpo- 
rate capacities,  with  no  power  to  reach  individuals ; so  that,  if  its 
requirements  were  disregarded,  compulsion  could  only  be  directed 
—if  against  anybody— against  the  delinquent  member  of  the  asso- 
ciation, the  state  itself. 

At  the  time  when  the  Convention  was  assembled,  the  general 
purpose  entertained  throughout  the  Union  appears  to  have  been, 
by  a revision  and  amendment  of  the  Articles  of  Confederation,  to 
give  to  the  Congress  power  over  certain  subjects,  of  which  that 
instrument  did  not  admit  of  its  taking  cognizance,  and  to  add 
such  provisions  as  would  render  its  power  efficient.  But  it  was 
not  at  all  understood  by  the  country  at  large  that,  while  the  nom- 
inal powers  of  the  Confederation  might  be  increased  at  the  pleas- 
ure of  the  states,  those  powers  could  not  be  made  effectual  witffi 


324: 


CONSTITUTIONAL  HISTORY. 


out  a change  in  the  principle  of  the  government.  Hence,  the  idea 
I of  abolishing  the  Confederation,  and  of  erecting  in  its  place  a gov- 
^ eminent  of  a totally  different  character,  was  not  entertained  by 
I the  states,  or,  if  entertained  at  all,  was  not  expressed  in  the  public 
' acts  of  the  states  by  which  the  Convention  Avas  called.  This  idea, 
however,  Avas  perhaps  not  necessarily  excluded  by  the  terms  em- 
ployed by  the  states  in  the  instruction  of  their  delegates ; and  Ave 
may,  therefore,  expect  to  find  the  members  of  that  assembly,  in 
construing  or  defining  the  poAvers  conferred  upon  it,  taking  a 
broader  or  narrower  vieAv  of  those  poAvers,  according  to  the  char- 
acter of  their  own  minds,  the  nature  of  their  previous  public  expe- 
rience, and  the  real  or  supposed  interests  of  their  particular  states. 

Many  of  the  persons  Avho  had  been  clothed  Avith  this  some- 
Avhat  vague  and  indeterminate  authority  to  ‘‘  revise  ” the  existing 
federal  system,  and  to  agree  upon  and  propose  such  amendments 
and  further  provisions  as  might  effectually  provide  for  the  exi- 
gencies of  the  Union,”  Avere  statesmen  Avho  had  passed  the  active 
period  of  their  previous  lives  in  vain  endeavors  to  secure  efficient 
action  for  the  poAvers  possessed  by  the  Congress,  both  under  the 
revolutionary  goA^ernment  and  under  the  Confederation.  They 
Avere  selected  by  their  states  on  account  of  this  very  experience, 
and  in  order  that  their  counsels  might  be  made  available  to  the 
country. ‘ They  saw  that  the  mere  grant  of  further  poAvers,  or 
the  mere  consent  that  the  Congress  should  have  jurisdiction  over 
certain  neAV  subjects,  would  be  of  no  a\^ail  Avhile  the  goA^ernment 
continued  to  rest  upon  the  vicious  principle  of  a naked  federal 
league,  leaving  the  question  constantly  to  recur,  Avhether  the  com- 
pact AAms  not  virtually  dissoUmd  by  the  refusal  of  individual  states 
to  discharge  their  federal  obligations.  These  persons,  consequent- 
ly, came  to  the  Convention  feeling  strongly  the  necessity  for  a rad- 
ical change  in  the  principles  and  structure  of  the  national  Union; 
1 but  feeling  also  great  embarrassment  as  to  the  mode  in  Avhich  that 
* change  Avas  to  be  effected. 

On  the  other  hand,  there  Avere  other  members  of  the  Conven- 
/ tion  who  came  with  a disposition  to  adhere  to  the  more  literal 
/ meaning  of  their  instructions,  and  who  did  not  concur  in  the 
' allegedliecessity  for  a radical  change  of  the  principle  of  the  gov- 

' See  the  preamble  to  the  act  of  Virginia,  ante,  p.  248,  note. 


EXISTENCE  OF  SLAVERY. 


325 


ernnient.  Fearing  that  the  ])o\ver  and  consequence  of  their  own 
states  would  be  diininislied  by  the  introduction  of  numbers  as  a 
basis  of  representation,  they  adhered  to  the  system  of  representa- 
tion by  states,  and  insisted  that  nothing  was  needed  to  cure  the 
evils  that  pressed  upon  the  country  but  to  enlarge  the  jurisdiction 
of  the  Congress  under  that  system.  They  were  naturally,  there- 
fore, the  first  to  suggest  and  the  last  to  surrender  the  objection, 
that  the  Convention  had  received  no  authority,  either  from  the 
states  or  from  the  Congress,  to  do  anything  more  than  revise  the 
Articles  of  Confederation,  and  recommend  such  further  powers  as 
might  be  engrafted  upon  the  present  system  of  the  Union. 

That  the  construction  of  their  powers  by  the  latter  class  of  the 
members  of  the  Convention  comported  with  the  mere  terms  of  the 
acts  of  the  states,  and  with  the  general  expectation,  I have  more 
than  once  intimated ; but  we  shall  see,  as  the  experiment  of  fram- 
ing the  new  system  proceeded,  that  the  views  of  the  other  class 
were  equally  correct;  that  the  addition  of  further  powers  to  the 
existing  system  of  the  Union  would  have  left  it  as  weak  and  in- 
efficient as  it  had  been  before ; and  that  what  were  universally 
regarded  as  the  exigencies  of  the  Union  ” — which  was  but  an- 
other name  for  the  wants  of  the  states — could  only  be  provided 
for  by  the  creation  of  a different  basis  for  the  government. 

Another  fact  which  we  are  to  remember  is  the  presence,  in  ' 
five  of  the  states  represented  in  the  Convention,  of  large  numbers 
of  a distinct  race,  held  in  the  condition  of  slaves.  Whatever  mode 
of  constituting  a national  system  might  be  adopted,  if  it  was  to 
be  a representative  government,  the  existence  of  these  persons 
must  be  recognized  and  provided  for  in  some  way.  Whatever  ‘ 
ratio  of  representation  might  be  established — whether  the  states 
were  to  be  represented  according  to  the  numbers  of  their  inhabi- 
tants, or  according  to  their  wealth— this  part  of  the  population  of 
the  slaveholding  states  presented  one  of  the  great  difficulties  to 
be  encountered.  A change  of  their  condition  was  not  now,  and 
never  had  been,  one  of  the  powers  which  those  states  proposed  to 
confide  to  the  Union.  In  no  previous  form  of  the  Confederacy 
had  any  state  proposed  to  surrender  its  own  control  over  the  con- 
dition of  persons  within  its  limits,  or  its  power  to  determine  what 
persons  should  share  in  the  political  rights  of  that  community ; 
and  no  state  that  now  took  part  in  the  new  effort  to  amend  the 


320 


CONSTITUTIONAL  HISTORY, 


present  system  of  the  Union  proposed  to  surrender  this  control 
over  its  own  inhabitants,  or  sought  to  acquire  any  control  over 
the  condition  of  persons  within  any  of  the  other  states. 

The  deliberations  of  the  Convention  were  therefore  begun  with 
the  necessary  concession  of  the  fact  that  slavery  existed  in  some 
of  the  states,  and  that  the  existence  and  continuance  of  that  con- 
dition of  large  masses  of  its  population  was  a matter  exclusively 
belonging  to  the  authority  of  each  state  in  which  they  were  found. 
Not  only  was  this  concession  implied  in  the  terms  upon  which  the 
states  had  met  for  the  revision  of  the  national  system,  but  the  fur- 
ther concession  of  the  right  to  have  the  slave  populations  included 
in  the  ratio  of  representation  became  equally  unavoidable.  They 
must  be  regarded  either  as  persons  or  as  chattels.  If  they  were 
persons,  and  the  basis  of  the  new  government  was  to  be  a repre- 
sentation of  the  inhabitants  of  the  states  according  to  their  num- 
bers  the  only  mode  of  representation  consistent  with  republican 

government— their  precise  condition,  their  possession  or  want  of 
political  rights,  could  not  affect  the  propriety  of  including  them 
in  some  form  in  the  census,  unless  the  basis  of  the  government 
should  be  composed  exclusively  of  those  inhabitants  of  the  states 
who  were  acknowledged  by  the  laws  of  the  states  as  free.  The 
large  numbers  of  the  slaves  in  some  of  the  states  would  have  made 
a government  so  constructed  entirely  unequal  in  its  operation,  and 
would  have  placed  those  states,  if  they  had  been  willing  to  enter 

it, as  they  never  could  have  been — in  a position  of  inferiority 

Avhich  their  wealth  and  importance  would  have  rendered  unjusti- 
fiable. On  the  other  hand,  if  the  wealth  of  the  states  was  to  be 
the  measure  of  their  representation  in  the  new  government,  the 
slaves  must  be  included  in  that  wealth,  or  they  must  be  treated 
simply  as  persons.  The  slaves  might  or  might  not  be  persons,  in 
the  view  of  the  law,  where  they  were  found  ; but  they  were  cer- 
tainly  in  one  sense  property  under  that  law,  and  as  such  they 
were  a very  important  part  of  the  wealth  of  the  state.  The  Con- 
federation had  already  been  obliged  to  regard  them,  in  consider- 
ing a rule  by  which  the  states  should  contribute  to  the  national 
expenses.  They  had  found  it  to  be  just  that  a state  should  be 
required  to  include  its  slaves  among  its  population,  in  a certain 
ratio,  when  it  was  called  upon  to  sustain  the  national  burdens  in 
proportion  to  its  numbers ; and  they  had  recommended  the  adop 


SLAVE  KEPKESENT ATIOK 


327 


tion  of  this  fundiimental  rule  as  an  amendment  of  the  federal 
Articles.*  Either  in  one  capacity,  therefore,  or  in  the  other,  or 
in  both — either  as  persons  or  as  property,  or  as  both — the  Union 
had  already  found  it  to  be  necessary  to  consider  the  slaves.  In 
framing  the  new  Union  it  was  equally  necessary,  as  soon  as  the 
equality  of  representation  by  states  should  give  place  to  a propor- 
tional and  unequal  representation,  to  regard  these  inhabitants  in 
one  or  the  other  capacity,  or  in  both  capacities,  or  to  leave  the 
states  in  which  they  wpre  found,  and  in  which  their  position  was 
a matter  of  grave  importance,  out  of  the  Union. 

This  difficulty  should  be  rightly  appreciated  and  fairly  stated 
by  the  historian  who  attempts  to  describe  its  adjustment,  and  it 
should  be  carefully  regarded  by  the  reader.  What  reflections 
may  arise  upon  the  facts  that  we  have  to  consider — Avhat  should 
be  the  judgment  of  an  enlightened  benevolence  upon  the  whole 
matter  of  slavery,  as  it  was  dealt  with  or  affected  by  the  Consti- 
tution of  the  United  States — may  find  an  appropriate  place  in 
some  future  discussion. 

Here,  however,  the  reader  must  approach  the  threshold  of  the 
subject  with  the  expectation  of  finding  it  surrounded  by  manv 
and  complex  relations.  History  should  undoubtedly  concern  it- 
self with  the  interests  of  man.  But  it  is  bound,  as  it  makes  up 
the  record  of  events  which  involve  the  destinies  and  welfare  of  ' 
different  races,  to  look  at  the  aggregate  of  human  happiness.  It 
is  not  to  rest,  for  its  final  conclusions,  in  seeming  or  in  real  incon- 
sistencies ; in  real  or  apparent  conflicts  between  opposite  princi- 
ples ; or  in  the  mere  letter  of  those  adjustments  by  which  such 
conflicts  have  been  avoided,  or  reconciled,  or  acknowledged.  It 
IS  to  arrive  at  results.  It  is  to  draw  the  wide  deduction  which 
will  show  whether  human  nature  has  lost  or  gained  bv  the  con- 
ditions and  forms  of  national  existence  which  it  undertakes  to 
describe.  As  the  question  should  always  be,  in  such  inquiries, 
whether  any  different  and  better  result  was  attainable  under  all 
the  circumstances  of  the  case— a question  to  which  a calm  and 


1 See  the  resolve  of  Congress,  passed  April  18,  1783,  proposing  to  amend  the 
Articles  of  Confederation.  Tliis  resolve  was  the  origin  of  the  proportion  of 
three  fifths,  in  counting  the  slaves.  See  post,  Chapter  XVIII.  p.  343-  ante  p 
144,  note  2.  ’ > r- 


CONSTITUTIONAL  HISTORY. 


328 

dispassionato  examination  will  generally  find  an  answer  the 
amount  of  positive  good  that  has  been  gained  for  all,  or  of  posi- 
tive evil  that  has  been  averted  from  all,  is  the  true  justification  of 
political  institutions. 

The  Convention,  when  fully  organized,  embraced  a represen- 
tation from  all  the  states,  with  the  single  exception  of  Khode 
Island. 

Connecticut,  which  had  steadily  o]:»posed  the  measure  of  a 
Convention,*  came  into  it  at  a late  period,  and  did  not  send  a dele- 
gation until  a fortnight  after  the  time  appointed  for  its  session.'* 
It  had  always  been  the  inclination  of  that  state  to  retain  in  her 
own  hands  the  regulation  of  commerce ; she  had  taxed  imports 
from  some  of  her  neighbors,  and  this  advantage,  as  it  was  consid- 
ered, had  made  her  reluctant  to  enlarge  the  powers  of  the  Union. 
Her  delegation  appeared  on  the  28th  of  May. 

That  of  New  Hampshire  was  not  appointed  until  the  latter 
part  of  June,^  and  did  not  appear  until  the  23d  of  July.'* 

Khode  Island,  small  in  territory  and  in  numbers,  but  favorably 
situated  for  the  pursuits  of  commerce,  had  strenuously  resisted 
every  effort  to  enlarge  the  powers  of  the  Union,  Ever  since  the 
Declaration  of  Independence,  the  people  of  that  state  had  clung 
to  the  opportunity,  afforded  by  their  situation,  of  taxing  the  con- 
tiguous states,  through  their  consumption  of  commodities  brought 
into  its  numerous  and  convenient  ports.  For  this  object  they  had 
refused  their  assent  to  the  revenue  system  of  1783 ; and  as  the 
failure  of  that  system  had  prevented  an  exhibition  of  some  of  the 
benefits  to  be  derived  from  uniform  fiscal  regulations,  the  local 
government  of  Khode  Island  adhered,  in  1 i 86—7,  to  hat  they 
had  always  regarded  as  the  true  interest  of  their  state.  They 
did,  it  is  true,  appoint  delegates  to  the  commercial  convention  at 
Annapolis,  but  the  persons  appointed  did  not  attend;  and  when 
the  resolve  which  sanctioned  the  Convention  of  1787  was  adopted 
in  Congress,  Khode  Island  ^vas  not  represented  in  that  body. 

When  the  recommendation  of  the  Congress  came  before  the 
legislature  of  the  state,  there  appears  to  have  been  a strong  pai  ty 
in  favor  of  making  an  appointment  of  delegates  to  the  Conven- 
tion. The  mercantile  part  of  the  population  had  come  to  entei- 


' Madison,  Elliot,  V.  90. 


2 Ibid.,  124. 


Elliot,  I.  120. 


♦ Ibid.,  351. 


ATTITUDE  OF  RHODE  ISLAND. 


329 


ttiin  more  liberal  and  far-seeing  notions  of  their  true  interests; 
and  the  views  of  some  of  the  more  intelligent  of  the  farmers  and 
mechanics  had  been  much  modified.  But  by  far  the  larger  por- 
tion of  the  people — wedded  to  a system  of  paper  money,  which 
furnished  almost  their  sole  currency,  and  vaguely  apprehending 
that  a new  government  for  the  Union  would  destroy  it,  seeking 
the  abolition  of  debts,  public  and  private,  and  jealous  of  all  influ- 
ence from  without  — were  in  a condition  to  be  ruled  by  their 
demagogues,  rather  than  to  be  enlightened  and  aided  by  their 
statesmen.  In  May  the  legislature  rejected  a proposition  to  ap- 
point delegates  to  the  Federal  Convention ; and  in  June,  although 
the  upper  house,  or  governor  and  council,  embraced  the  measure, 
it  was  again  negatived  in  the  House  of  Assembly  by  a large  ma- 
jority. The  minority  then  formed  an  organization,  which  never 
lost  sight  of  the  national  relations  of  the  state,  and  Avhich  finally 
succeeded  in  bringing  her  into  the  Union  under  the  new  Consti- 
tution, in  1790. 

Immediately  after  the  first  rejection  of  the  proposal  to  unite 
with  the  other  states  in  reforming  the  Confederation,  a body  of 
commercial  persons  in  Providence  addressed  a letter  to  the  Con- 
vention, expressing  the  opinion  that  full  power  for  the  regulation 
of  the  commerce  of  the  United  States,  both  foreign  and  domestic, 
ought  to  be  vested  in  the  national  council,  and  that  effectual  ' 
arrangements  should  also  be  made  for  giving  operation  to  the 
existing  powers  of  Congress  in  their  requisitions  for  national  pur- 
poses. Their  object  in  this  communication  was  to  prevent  an 
impression  among  the  other  states,  unfavorable  to  the  commercial 
interests  of  Eh  ode  Island,  from  growing  out  of  the  circumstance 
of  their  being  unrepresented  in  the  Convention.  Expressing  the 
hope  that  the  result  of  its  deliberations  would  be  to  ‘‘  strengthen 
the  Union,  promote  the  commerce,  increase  the  power,  and  estab- 
lish the  credit  of  the  United  States,”  they  pledged  their  influence 
and  best  exertions  to  secure  the  adoption  of  that  result  by  the 
state  of  Ehode  Island.  The  signers  of  this  letter  formed  the  nu- 
cleus of  that  party  which  afterwards  fulfilled  the  pledge  thus 
given  to  the  Convention. 

The  absence  of  Ehode  Island  did  not  occasion  a serious  embar-  j 
rassment.  The  resolve  of  Congress  recommending  the  Conven-/ 
tion  did  not  expressly  require  the  presence  of  all  the  states ; and 


330 


CONSTITUTIONAL  HISTORY. 


the  commissions  given  by  each  of  the  states  which  adopted  the 
recommendation  clearly  implied  that  their  delegates  were  to  meet 
and  act  with  the  delegations  of  such  other  states  as  might  see  lit 
to  be  represented.  The  communication  of  the  minority  party  in 
Khode  Island  was  received  and  read,  and  the  interests  of  that 
state  were  attended  to  throughout  the  proceedings. 

We  are  now  carefully  to  observe  the  position  of  the  states 
when  thus  assembled  in  Convention.  Their  meeting  was  purely 
voluntary  ; they  met  as  equals ; and  they  were  sovereign  political 
communities,  whom  no  power  could  rightfully  coerce  into  a change 
of  their  condition,  and  with  whom  such  a change  must  be  the  re- 
sult of  their  own  free  and  intelligent  choice,  governed  by  no  other 
than  the  force  of  circumstances.  That  they  were  independent  of 
foreign  control  was  ascertained  by  the  Declaration  of  Indepen- 
dence, by  the  war,  and  by  the  Treaty  of  Peace.  That  they  were 
independent  of  each  other,  except  so  far  as  they  had  made  cer- 
tain mutual  stipulations  in  the  Articles  of  Confederation,  w^as  the 
necessary  result  of  the  events  which  had  made  the  people  of 
each  state  its  rightful  and  exclusive  sovereigns.  We  must  recur, 
therefore,  to  the  Articles  of  Confederation  for  the  purpose  of 
determining  the  nature  of  the  position  in  which  the  states  now 
stood. 

When  the  states,  in  1781,  entered  into  the  Confederacy  then 
established,  they  reserved  their  freedom,  sovereignty,  and  indepen- 
dence, and  every  jurisdiction,  power,  and  right  not  expressly  dele- 
gated to  the  United  States.  By  the  provisions  of  the  federal 
compact  these  separate  and  sovereign  communities  committed  to 
a general  council  the  management  of  certain  interests  common  to 
them  all ; in  that  council  they  were  represented  equally,  each  state 
having  one  vote ; but  as  neither  the  powers  conferred  upon  that 
body,  nor  the  restraints  imposed  by  ^the  states  upon  themselves, 
were  to  be  enforced  by  any  agreed  sanctions,  the  parties  to  the 
compact  were  left 'to  a voluntary  performance  of  their  stipula- 
tions. Still,  there  were  certain  powers  which  the  states  agreed 
should  be  exercised  by  the  United  States  in  Congress  assembled, 
and  certain  duties  towards  the  Confederacy  which  they  agreed  to 
discharge ; and  therefore,  so  far  as  authority  and  jurisdiction  had 
been  conferred  upon  the  United  States,  so  far  they  had  been  sur- 
rendered by  the  states.  The  peculiarity  of  the  case  was,  that  tlie 


POWER  OF  THE  CONVENTION. 


331 


powers  surrendered  were  ineffectual  for  the  want  of  appropriate 
means  of  coercion. 

These  powers  tiie  states  did  not  propose  to  recall.  The  Union 
was  unbroken,  though  feeble,  and  trembling  on  the  verge  of  dis- 
solution. Ihe  purpose  of  all  was  to  strengthen  and  secure  its 
powers,  to  add  somewhat  to  their  number,  and  to  render  the  whole 
ehicieiit  and  operative  by  providing  some  form  of  direct  and  com- 
pulsory authority,  lor  this  end,  as  members  of  an  existing  con- 
federacy, in  possession  of  all  the  powers  not  previously  delegated 
to  the  Union,  the  states  had  assembled  upon  the  same  equalitv, 
and  under  the  same  form  of  representation,  with  which  they  had 
always  acted  in  the  Congress. 

As  the  states  had  conferred  certain  powers  upon  the  Confed- 
eration, so  it  was  equally  competent  to  them  to  enlarge  and  add 
to  those  powers.  They  had  formed  state  governments,  and  estab- 
lished written  constitutions.  But  the  people  of  the  states,  and 
not  their  governments,  held  the  supreme,  absolute,  and  uncon- 
trollable power.  They  had  created,  and  they  could  modify  or  de- 
stroy ; they  could  withdraw  the  powers  conferred  upon  one  class 
of  agents,  and  bestow  them  upon  another  class.  What  was  wanted 
was  the  discovery  of  some  mode  of  proceeding  which,  by  involv- 
ing the  consent  of  the  state  governments,  would  avoid  the  ap- 
pearance and  the  reality  of  revolution,  and  make  the  contemplated  ' 
changes  consist  with  the  American  idea  of  constitutional  action. 

Here  also  it  seems  proper  to  state  the  reasons  why  the  process 
of  framing  the  Constitution  is  so  important  as  to  demand  a care- 
ful exhibition  of  the  proceedings  of  those  to  Avhom  this  great 
undertaking  was  intrusted. 

The  Convention  had  confessedly  no  power  to  enact  or  establish 
anything.  It  was  a representative  body,  clothed  with  authority  ^ 
to  agree  upon  a system  of  government  to  be  recommended  to  the 
adoption  of  their  constituents.  The  constituents  were  twelve  of 
the  thirteen  states  of  the  Confederacy,  each  having  an  equal  voice 
and  vote  in  the  proceedings ; but  neither  the  assent  nor  the  dis- 
sent of  a state,  in  the  Convention,  to  the  whole  system,  or  to  anv 
part  of  it,  bound  the  people  of  that  state  to  receive  or  to  reject  it 
when  it  should  come  before  them.  Still,  the  results  of  the  various 
determinations  of  a majority  of  the  states  in  this  body ; the  pur- 
poses of  particular  provisions  which  those  results  clearly  disclose ; 


332 


CONSTITUTIONAL  HISTORY. 


the  relations  which  they  evince  between  the  different  parts  of  the 
system — are  all  of  the  utmost  importance  in  determining  the  sense 
in  which  the  whole  ultimately  came  before  the  enacting  authority 
for  approval  or  rejection.  If,  for  example,  a majority  of  the  states 
came  to  a very  early  determination  that  the  principle  of  the  gov- 
ernment should  no  longer  be  that  of  an  exclusive  representation 
of  states,  but  should  include  a representation  of  the  people  of  the 
different  states  in  some  fair  and  equitable  ratio ; if  they  adhered 
to  this  throughout  their  deliberations,  and  adjusted  everything 
with  reference  to  it ; and  if,  when  they  finally  provided  for  a 
mode  of  establishing  the  new  system,  they  submitted  it  directly 
to  the  people  of  each  state  to  declare  whether  they  would  be  so 
represented,  it  is  manifest  that  these  results  of  their  action  have 
much  to  do  with  the  inquiry.  What  is  the  true  nature  of  the  pres- 
ent government  of  the  United  States? 

Every  student  of  the  proceedings  and  discussions  in  the  national 
Convention  should,  however,  be  careful  not  to  extend  this  princi- 
ple of  general  interpretation  to  the  views,  opinions,  or  arguments 
expressed  or  employed  by  indiv^iduals  in  that  assembly.  The  line 
of  argument  or  illustration  adopted  by  different  members  may  be 
more  or  less  important,  as  tending  to  explain  the  scope  or  purpose 
of  a particular  decision  arrived  at  by  a vote  of  the  Convention ; 
and  occasionally,  as  will  be  seen  in  reference  to  the  arrangements 
which  were  finally  entered  into  as  mutual  concessions  or  compro- 
mises between  different  interests,  the  discussions  will  be  found  to 
be  of  great  significance  and  importance.  But  it  is,  after  all,  to 
the  results  themselves,  and  to  the  principles  invol\  ed  in  the  A^ari- 
ous  decisions  of  the  Convention,  as  indicated  by  the  votes  taken, 
that  we  are  to  look  for  the  landmarks  that  are  to  guide  our  in- 
quiries into  the  fundamental  changes,  improvements,  and  additions 
proposed  by  the  Convention  to  the  country,  and  afterwards  adopted 
by  the  people  of  the  states. 


CHAPTER  XYIII. 

Construction  of  a Legislative  Power. — Basis  of  Representa- 
tion, AND  Rule  of  Suffrage. — Powers  of  Legislation. 

The  Convention  having  been  organized,  Governor  Randolph 
subinitted  a series  of  resolutions,  embracing  the  prin- 
cipal changes  that  ought  to  be  proposed  in  the  structure  of  the 
federal  system. 

Mr.  Charles  Pinckney  of  South  Carolina  also  submitted  a plan 
of  go\ eminent,  which,  with  Governor  Randolph’s  resolutions,  was 
referred  to  a committee  of  the  wdiole.  It  is  not  necessary  here  to 
state  the  details  of  these  several  systems ; for  although  that  intro- 
duced by  Randolph  gave  a direction  to  the  deliberations  of  the 
committee,  the  results  arrived  at  were  in  some  respects  materially 
different. 

The  first  distinct  departure  that  was  made  from  the  principles 
of  the  Confederation  was  involved  in  one  of  the  propositions 
brought  forward  by  Governor  Randolph,  that  a National  gov- 
ernment ought  to  be  established,  consisting  of  a supreme  legisla- 
Lve,  executive,  and  judiciary and  as  this  proposition  ^vas  affirmed 
in  the  committee  by  a vote  of  six  states,  it  is  important  to  under- 
stand the  sense  in  which  it  was  understood  by  them.^ 

Most  of  the  framers  of  the  Constitution  seem  to  have  considered 
that  a compact  between  sovereign  states,  which  rested  for  its  effi- 
cacy on  the  good  faith  of  the  parties,  and  had  no  other  compulsory 
operation  than  a resort  to  arms  against  a delinquent  member,  was 
a ‘federal”  government.  This  was  the  principle  of  the  Confed- 
eration. At  this  early  stage  of  their  deliberations,  the  idea  which 


^ Edmund  Randolph,  See  ante,  p.  310. 

= Massnchusetts,  Pennsylvania,  Delaware,  Virginia,  North  Carolina,  South 
Carolina,  «y,C;  Connecticut,  «o,  1 ; New  York  diviiled  (Colonel  Hamilton  ay, 
Mr.  \ ates  no).  jMadison,  Elliot,  V.  132,  134. 


334 


CONSTITUTIONAL  HISTORY. 

was  intended  by  those  who  favored  a change  of  that  principle, 
when  they  spoke  of  a “ national  ” government,  was  one  that  would 
be  a supreme  power  with  respect  to  certain  national  objects  com- 
mitted to  it,  and  that  would  have  some  kind  of  direct  compulsory 
action  upon  individuals.  This  distinction  was  understood  by  all 
to  be  real  and  important.  It  led  directly  to  the  question  of  the 
powers  of  the  Convention,  and  formed  the  early  line  of  division 
between  those  who  desired  to  adhere  to  the  existing  system,  and 
those  who  aimed  at  a radical  change.  The  former  admitted  the 
necessity  for  a more  effective  government,  and  supposed  that  the 
Confederation  could  be  made  so  by  distributing  its  powers  into 
the  three  great  departments  of  a legislative,  executive,  and  judi- 
ciary ; but  they  did  not  suggest  any  mode  by  which  those  powers 
could  be  made  supreme  over  the  authority  of  the  separate  states. 
The  latter  contended  that  there  could  be  no  such  thing  as  gov- 
ernment unless  it  were  a supreme  poAver,  and  that  there  could  be 
but  one  supreme  power  over  the  same  subjects  in  the  same  com- 
munity ; that  supreme  power  could  not,  from  the  nature  of  things, 
act  on  the  states  collectively,  in  the  usual  and  peaceful  mode  in 
Avhich  the  operations  of  government  ought  to  be  conducted,  but 
that  it  must  be  able  to  reach  individuals;  and  that,  as  the  Con- 
federation could  not  operate  in  this  Avay,  the  distribution  of  its 
poAvers  into  distinct  departments  Avould  be  no  improvement  upon 
the  present  condition  of  things. 

But  Avhen  the  distinction  betAveen  a national  and  a federal 
o’overnment  had  been  so  far  developed,  the  subject  Avas  still  left 
hi  a great  degree  vague  and  indeterminate.  What  was  to  mark 
this  distinction  as  real,  and  give  it  practical  effect  ? By  what 
means  was  the  government,  which  was  now,  as  all  admitted,  a 
mere  federal  league  between  sovereign  states,  to  become,  m any 
just  sense,  national?  The  idea  of  a nation  implies  the  existence 
of  a people  united  in  their  political  rights,  and  possessed  of  the 
same  political  interests.  A national  government  must  be  one  that 
exercises  the  political  powers,  and  protects  the  political  interests  of 
such  a people.  But,  hitherto,  the  people  of  the  United  States  had 
been  divided  into  distinct  sovereignties ; and  although  by  the  Ar- 
ticles of  Confederation  some  portion  of  the  sovereign  power  of 
each  of  the  separate  states  had  been  vested  in  a general  govern- 
ment, that  government  had  been  found  inefficient,  and  incapable 


335 


RULE  OF  SUFFRAGE. 

of  resisting  the  grocat  power  that  hatl  been  reserved  to  the  respec- 
tive states,  and  was  constantly  exerted  by  tliem.  The  dilHculty 
was,  that  the  constituent  parties  to  the  federal  union  were  them- 
selves political  governments  and  sovereigns ; the  peojile  of  the 
states  had  no  direct  representation,  and  no  direct  suffrage,  in  the 
general  legislature ; and  as  in  a republican  government  the  repre- 
sentation and  t!ie  suffrage  must  determine  its  character,  it  became 
obvious  that,  in  order  to  establish  a national  government  that 
would  embrace  the  political  rights  and  interests  of  the  people  in- 
habiting the  states,  the  basis  of  representation  and  the  rule  of  suf- 
frage must  be  changed. 

It  being  assumed  that  the  new  government  was  to  be  divided 
into  the  three  departments  of  the  legislative,  executive,  and  judi- 
ciary, several  questions  at  once  presented  themselves  with  regard 
to  the  constitution  of  the  national  legislature.  Was  it  to  consist 
of  one  or  of  two  houses  ? and  if  the  latter,  what  was  to  be  the 
reprGSGntation  and.  tliG  puIg  of  suffragG  in  Gacli  ? 

The  resolutions  of  Governor  Eandolph  raised  the  question  as 
to  the  rule  of  suffrage,  before  the  committee  had  determined  on 
the  division  of  the  legislative  power  into  two  branches.  One  of 
his  propositions  was,  “ That  the  rights  of  suffrage  in  the  national 
legislature  ought  to  be  proportioned  to  the  quotas  of  contribution 
or  to  the  number  of  free  inhabitants,  as  the  one  or  the  other  rule  ' 
may  seem  best  in  different  cases.”  This  was  no  sooner  propounded 
Gian  a difficulty  was  suggested  by  the  deputies  of  the  state  of 
Delaware  which  threatened  to  impede  the  whole  action  of  the 
Convention.  They  declared  that  they  felt  restrained  by  their 
commissions  from  assenting  to  any  change  of  the  rule  of  suffrage 
and  announced  their  determination  to  retire  from  the  Convention 
G such  a change  were  adopted.  The  firmness  and  address  of 
Jjiadison  and  Gouverneur  Morris  surmounted  this  obstacle.  They 
declared  that  the  proposed  change  was  absolutely  essential  to  tlm 
formation  of  a national  government ; but  they  consented  to  post- 
pone the  question,  having  ascertained  that  it  w'ould  flnallv  be 
carriGd.^ 

The  committee  thereupon  immediately  determined  that  the 


' Madison,  Elliot,  Y.  134,  135. 


CONSTITUTIONAL  HISTORY. 


33G 

national  legislature  should  consist  of  two  branches/  and  proceeded 
to  consider  the  mode  of  representation  and  suffrage  in  both.  As 
the  discussions  proceeded,  the  members  became  divided  into  two 
parties  upon  the  general  subject ; the  one  was  for  a popular  basis 
and  a proportionate  representation  in  both  branches  ; the  other 
was  in  favor  of  an  equal  representation  by  states  in  both.  The 
first  issue  between  them  was  made  upon  the  House,  or  what  was 
termed  the  first  branch  of  the  legislature.  On  the  one  side  it 
was  urged  that  to  give  the  election  of  this  branch  to  the  people 
of  the  states  would  make  the  new  government  too  democratic  ; 
that  the  people  were  unsafe  depositaries  of  such  a power,  not  be- 
cause they  wanted  virtue,  but  because  they  were  liaole  to  be  mis- 
led ; and  that  the  state  legislatures  would  be  more  likely  to  appoint 
suitable  persons.  On  the  other  hand,  it  was  admitted  that  an 
election  of  the  more  numerous  branch  of  the  national  legislature 
by  the  people  would  introduce  a true  democratic  principle  into 
the  government,  and  this,  it  was  said,  was  necessary.  It  was 
urged  that  this  branch  of  the  legislature  ought  to  know  and  sym- 
pathize with  every  part  of  the  community,  and  ought  therefore 
to  be  taken,  not  only  from  different  parts  of  the  republic,  but  also 
from  different  districts  of  the  larger  members  of  it.  The  broad- 
est possible  basis,  it  was  said,  ought  to  be  given  to  the  new  sys- 
tem ; and  as  that  system  was  to  be  republican,  a direct  represen- 
tation of  the  people  was  indispensable.  To  increase  the  weight 
of  the  state  legislatures,  by  making  them  electors  of  the  national 
legislature,  would  only  perpetuate  some  of  the  Avorst  e\dls  of  the 
Confederation. 

A decided  majority  of  the  states  sustained  the  election  of  the 
first  branch  of  the  national  legislature  by  the  people."  Great 
efforts  were,  however,  subsequently  made  to  change  this  decision ; 
and  the  discussion  AAdiich  ensued  on  a motion  that  this  branch 
should  be  elected  by  the  state  legislatures  throws  much  light 
upon  the  nature  of  the  government  Avhich  the  friends  of  an  elec- 
tion by  the  people  Avere  aiming  to  establish.  From  that  discus- 


1 T^Iadison,  Elliot,  V.  135.  The  vote  of  Pennsylvania,  in  compliance  with  the 
wishes  of  Dr.  Franklin,  was  given  for  a single  house. 

2 Massachusetts,  New  York,  Pennsylvania,  Virginia,  North  Carolina,  Georgia, 
ay,  6 ; New  Jersey,  South  Carolina,  no,  2 ; Connecticut  and  Delaware  divided. 


POPULAR  REPRESENTATION.  337 

sion  it  aj)pears  tliat  the  idea  was  already  entertained  of  forming 
a government  that  should  have  a vigorous  authority  derived  di- 
rectly from  the  })eoj)le  of  the  states— one  that  should  possess  both 
the  force  and  the  sense  of  the  people  at  large.  For  the  formation 
of  such  a government  one  of  two  courses  was  necessary  : either  to 
abolish  the  state  goveniments  altogether ; or  to  leave  them  in  ex- 
istence, and  to  regard  the  people  of  each  state  as  competent  to 
withdraw  from  their  local  governments  such  portions  of  their 
political  power  as  they  might  see  fit  to  bestow  upon  a national 
government.  The  latter  plan  was  undoubtedly  a novelty  in  po- 
litical science  ; for  no  system  of  government  had  yet  been  con- 
structed in  which  the  individual  stood  in  the  relation  of  subject 
to  two  distinct  sovereignties,  each  possessed  of  a distinct  sphere, 
and  each  suiDreme  in  its  own  s]fiiere.  But  if  the  American  doc- 
trine were  true,  that  all  supreme  power  resides  originally  in  the 
people,  and  that  all  governments  are  constituted  by  them  as  the 
agents  and  depositaries  of  that  power,  there  could  be  no  incom- 
patibility in  such  a system.  The  people  who  had  deposited  with 
a state  government  the  sovereign  power  of  their  community  could 
withdraw  it  at  their  pleasure  ; and  as  they  could  Avithdraw  the 
Avhole,  they  could  AvithdraAv  a part  of  it.  If  a part  only  Avere 
AvithdraAvn,  or,  rather,  if  the  supreme  power  in  relation  to  particu- 
lar objects  AAmre  to  be  taken  from  the  state  governments  and 
Amsted  in  another  class  of  agents,  leaving  the  authority  of  the 
former  undiininished  except  as  to  those  particular  objects,  the 
individual  might  OAve  a double  allegiance,  but  there  could  be  no 
confusion  of  his  duties,  provided  the  poAvers  AAdthdraAvn  and  re- 
Amsted  AAmre  clearly  defined. 

The  advocates  of  a national  government,  besides  and  beyond 
the  intrusting  of  a particular  jurisdiction  to  that  gOAmrnment, 
wished  to  make  it  certain  that  its  legislative  power,  in  each  act 
of  legislation,  should  rest  on  the  direct  authority  of  the  people. 
For  this  purpose  they  desired  to  aAmid  all  agency  of  the  state 
governments  in  the  appointment  of  the  members  of  the  national 
legislature.  They  held  this  to  be  necessary  for  two  reasons.  In 
the  first  place,  they  said  that  in  a national  goAmrnment  the  people 
must  be  represented  ; and  that  in  a republican  system  the  real 
constituent  should  act  directly,  and  without  any  intermediate 
agency,  in  the  appointment  of  the  representati\m.  In  the  second 
I. 22 


338 


CONSTITUTIONAL  HISTORY. 


place,  they  deduced  from  the  objects  of  a national  government 
the  necessity  for  excluding  the  agency  of  the  state  governments 
in  the  appointment  of  those  who  were  to  exercise  its  legislative 
power.  Those  objects,  they  contended,  were  not  fully  stated  by 
their  opponents.  The  latter  generally  regarded  the  objects  of  the 
Union  as  confined  to  defence  against  foreign  danger  and  internal 
disorder ; the  power  to  make  binding  treaties  with  foreign  coun- 
tries ; the  regulation  of  commerce,  and  the  power  to  derive  reve- 
nues therefrom.^  The  former  insisted  that  another  great  object 
must  be,  to  provide  more  effectually  for  the  security  of  private 
rights,  and  the  steady  dispensation  of  justice.  Mr.  Madison  de- 
clared that  republican  liberty  could  not  long  exist  under  the 
abuses  of  it  Avhich  had  been  practised  in  some  of  the  states,  where 
the  uncontrollable  power  of  a majority  had  enabled  debtors  to 
elude  their  creditors,  the  holders  of  one  species  of  property  to 
oppress  the  holders  of  another  species,  and  where  paper  money 
had  become  a stupendous  fraud.  These  evils  had  made  it  mani- 
fest that  the  power  of  the  state  governments,  even  in  relation  to 
some  matters  of  internal  legislation,  must  be  to  some  extent  re- 
strained ; and  in  order  effectually  to  restrain  it,  the  national  gov- 
ernment must,  in  the  construction  of  its  departments,  as  well  as 
in  its  powers,  be  derived  directly  from  the  people. 

These  views  again  prevailed  as  to  the  first  branch,  and  Mr. 
Pincknev’s  proposition  for  electing  that  branch  by  the  state  leg- 
islatures was  negatived  by  a vote  of  three  states  in  the  affirma- 
tive and  eight  in  the  negative.=^ 

But  as  soon  as  the  impracticability  of  abolishing  the  state  gov- 
ernments was  seen  and  admitted— and  it  was  at  once  both  seen 
and  admitted  by  some  of  the  strongest  advocates  for  a national 
government — it  became  apparent  to  a large  part  of  the  assembly 
that  to  exclude  those  governments  from  all  agency  in  the  election 
of  both  branches  of  the  national  legislature  would  be  inexpedient. 
It  would  obviously  have  been  theoretically  correct  to  have  given 


1 See  Mr.  Sherman’s  remarks,  made  in  committee,  June  G;  Madison,  Elliot, 
V.  161. 

^ See  Mr.  Madison’s  views  as  stated  in  his  debates,  Elliot,  V.  161. 

^ Connecticut,  New  Jersey,  South  Carolina,  ay^  3 ; Massachusetts,  New  Toik, 
Pennsylvania,  Delaware,  Maryland,  Virginia,  North  Carolina,  Georgia,  no,  8. 


EQUALITY  OF  VOTES  IN  THE  OLD  CONGRESS.  3;R) 

the  election  of  both  tlie  Senate  and  tlie  Iloiise  to  the  people  of 
the  states,  especially  when  it  was  intended  to  adhere  to  the  prin- 
ciple of  a proportionate  representation  of  the  people  of  the  states 
in  both  branches.'  But  the  necessity  for  providing  some  means 
by  which  the  states,  as  states,  might  defend  themselves  against 
encroachments  of  the  national  government,  made  it  apparent  that 
they  must  become,  in  the  election,  a constituent  part  of  the  sys- 
tem. No  mode  of  doing  this  presented  itself,  except  to  give  the 
state  legislatures  the  appointment  of  the  less  numerous  branch  of 
the  national  legislature — a provision  which  was  finally  adopted 
in  the  committee  by  the  unanimous  vote  of  the  states." 

The  results  thus  reached  had  settled  for  the  present  the  very 
important  fact  that  the  people  of  the  states  were  to  be  represented 
in  both  branches  of  the  legislature  ; that  for  the  one  they  were  to 
elect  their  representatives  directly,  and  for  the  other  they  were 
to  be  elected  by  the  legislature  of  the  state. 

But  when  it  had  been  ascertained  by  whom  the  members  of 
the  two  branches  were  to  be  elected,  there  remained  to  be  deter- 
mined the  decisive  question  which  was  to  mark  still  more  effec- 
tively the  distinction  between  a purely  national  and  a purely  fed- 
eral government,  namely,  the  rule  of  suffrage,  or  the  ratio  of  rep- 
resentation in  the  national  legislature. 

The  rule  of  suffrage  adopted  in  the  first  Continental  Congress  ' 
was,  as  we  have  seen,  the  result  of  necessity ; for  it  was  impos- 
sible to  ascertain  the  relative  importance  of  each  colony;  and, 
moreover,  that  Congress  was  in  fact  an  assembly  of  committees 
of  the  different  colonies,  called  together  to  deliberate  in  what 
mode  they  could  aid  each  other  in  obtaining  a redress  of  their 
several  grievances  from  Parliament  and  the  crown.  But  while, 
from  the  necessity  of  the  case,  they  assigned  to  each  colony  one 
vote  in  the  Congress,  they  looked  forward  to  the  time  when  the 
relative  wealth  or  population  of  the  colonies  must  regulate  their 
suffrage  in  any  future  system  of  continental  legislation."  The 
character  of  the  government  formed  by  the  Articles  of  Confed- 
eration had  operated  to  postpone  the  arrival  of  this  period ; be- 


^ Mr.  Wilson  was  in  favor  of  this  plan,  and  Mr.  Madison  seems  to  have  fa- 


vored it. 

" Ante,  pp.  10,  11. 


^ Madison,  Elliot,  V.  170. 


340  CONSTITUTIONAL  HISTORY. 

/ 

cause  it  v/as  in  the  very  nature  of  that  system  that  each  state 
should  have  an  equal  voice  with  every  other.  This  system  was 
the  result  of  the  formation  of  the  state  governments,  each  of 
which  had  become  the  present  depositary  of  the  political  powers 
of  an  independent  people. 

But  if  this  system  were  to  be  changed— if  the  people  of  the 
states  were  to  be  represented  in  each  branch  of  the  national  legis- 
lature— some  ratio  of  representation  must  be  adopted,  or  the  idea 
of  connecting  them  as  a nation  with  the  government  that  was  to 
be  instituted  must  be  abandoned.  It  was  obviously  for  the  inter- 
est of  the  larger  states,  such  as  Virginia,  Pennsylvania,  and  Mas- 
sachusetts— then  the  three  leading  states  in  point  of  population — 
to  have  a proportionate  representation  of  their  whole  inhabitants, 
without  reference  to  age,  sex,  or  condition.  On  the  other  hand, 
it  was  for  the  interest  of  the  smaller  states  to  insist  on  an  equality 
of  votes  in  the  national  legislature,  or  at  least  on  the  adoption  of 
a ratio  that  would  exclude  some  portions  of  the  population  of  the 
great  states.  Some  of  the  lesser  states  were  exceedingly  strenu- 
ous in  their  efforts  to  accomplish  these  objects,  and  more  than 
once,  in  the  course  of  the  proceedings,  declared  their  purpose  to 
form  a union  on  no  other  basis. 

In  this  posture  of  things  the  alternatives  were,  either  to  form 
no  union  at  all,  or  only  to  form  one  between  the  large  states  will- 
ing to  unite  on  the  basis  of  proportionate  representation ; or  to 
abolish  the  state  governments,  and  throw  the  whole  into  one  mass ; 
or  to  leave  the  distinctions  and  boundaries  between  the  different 
states,  and  adopt  some  equitable  ratio  of  suffrage,  as  between 
the  people  of  the  several  states,  in  the  national  legislature.  The 
latter  course  was  adopted  in  the  committee,  as  to  the  first  branch, 
by  a vote  of  seven  states  in  the  affirmative,  against  three  in  the 
negative,  one  being  divided.' 

The  question  was  then  to  be  determined,  by  what  ratio  the 
representation  of  the  different  states  should  be  regulated;  and 
here  again  any  one  of  several  expedients  might  be  adopted.  The 
basis  of  representation  might  be  made  to  consist  of  the  whole 


^ Massaclinsetts,  Connecticut,  Pennsylvania,  Virginia,  North  Carolina,  South 
Carolina,  Georgia  ay,  7;  New  York,  New  Jersey,  Delaware,  no,  3;  Maryland, 
divided. 


FREE  PERSONS  OF  COLOR. 


341 


number  of  voters,  or  those  on  whom  the  states  had  conferred  the 
elective  franchise;  or  it  might  be  confined  to  tlie  white  inhabit- 
ants, excluding  all  other  races ; or  it  might  include  all  the  free  in- 
habitants of  every  race,  excluding  only  the  slaves  ; or  it  might  em- 
brace the  whole  population  of  each  state.  Some  examination  of 
each  of  these  plans  will  illustrate  the  difficulties  which  had  to  be 
encountered. 

To  have  adopted  the  number  of  legal  voters  of  the  states  as 
the  ratio  of  representation  in  the  national  legislature  would  have 
been  to  adopt  a system  in  which  there  were  great  existing  ine- 
qualities. The  elective  franchise  had  been  conferred  in  the  differ- 
ent states  upon  very  different  principles;  it  was  very  broad  in 
some  of  the  states,  and  much  narrower  in  others,  according  to 
their  peculiar  policy  and  manners.  These  inequalities  could  scarce- 
ly have  been  removed  ; for  the  right  of  suffrage  in  some  of  the 
states  was  more  or  less  connected  with  their  systems  of  descent 
and  distribution  of  property,  and  those  systems  could  not  readily 
be  changed,  so  as  to  adapt  the  condition  of  society  to  the  new  in- 
terest of  representation  and  influence  in  the  general  government. 
This  plan  was,  therefore,  out  of  the  question. 

It  was  nearly  as  impracticable,  also,  to  confine  the  basis  of 
representation  to  the  white  inhabitants  of  the  states.  Some  of 
the  states  — such  as  Massachusetts,  Connecticut,  Khode  Island,  ' 
New  York,  and  Pennsylvania,  in  which  slavery  was  already,  or 
was  ultimately  to  become,  extinct,  and  Maryland,  North  Carolina, 
and  Virginia,  where  slavery  was  likely  to  remain — had  large  num- 
bers of  free  blacks.  These  inhabitants,  who  were  regarded  as  citi- 
zens in  some  of  the  states,  but  not  in  others,  were  in  all  a part  of 
their  populations,  contributing  to  swell  the  aggregate  of  the  num- 
bers and  wealth  of  the  state,  and  thus  to  raise  it  in  the  scale  of 
relative  rank.  Their  personal  consequence,  or  social  rank,  was  a 
thing  too  remote  for  special  inquiry.  A state  that  contained  five 
or  ten  thousand  of  these  inhabitants  might  well  say  that,  although 
of  a distinct  race,  they  formed  an  aggregate  portion  of  its  free 
population,  too  large  to  be  omitted  without  opening  the  door  to 
inquiries  into  the  condition  and  importance  of  other  classes  of  its 
free  inhabitants.  This  was  the  situation  of  all  the  Northern  States 
except  New  Hampshire,  as  well  as  of  all  the  Middle  and  Southern 
States ; and  it  was  especially  true  of  Virginia,  which  had  nearly 


342 


CONSTITUTIONAL  HISTORY. 


twice  as  many  free  colored  persons  as  any  other  state  in  the 
Union. 

It  was  equally  impracticable  to  form  a national  government  in 
Avhich  the  basis  of  representation  should  be  confined  to  the  free  in- 
habitants of  the  states.  The  five  states  of  Mary  land,  Yirginia,  North 
Carolina,  South  Carolina,  and  Georgia,  including  their  slaves,  were 
found  by  the  first  census,  taken  three  years  after  the  formation  of  the 
Constitution,  to  contain  a fraction  less  than  one  half  of  the  whole 
population  of  the  Union.'  In  three  of  those  states  the  slaves  were 
a little  less  than  half,  and  in  two  of  them  they  were  more  than 
half,  as  numerous  as  the  whites. There  was  no  good  reason, 
therefore— except  the  theoretical  one  that  a slave  can  have  no  ac- 
tual voice  in  government,  and  consequently  does  not  need  to  be 
represented — why  a class  of  states  containing  nearly  half  of  the 
whole  population  of  the  Confederacy  should  consent  to  exclude 
such  large  masses  of  their  populations  from  the  basis  of  represen- 
tation, and  thereby  give  to  the  free  inhabitants  of  each  of  the 
other  eight  states  a relatively  larger  share  of  legislative  power 
than  would  fall  to  the  free  inhabitants  of  the  states  thus  situated. 
The  objection  arising  from  the  political  and  social  condition  of  the 
slaves  would  have  had  great  weight,  and,  indeed,  ought  to  have 
been  decisive  of  the  question,  if  the  object  had  been  to  efface  the 
boundaries  of  the  states,  and  to  form  a purely  consolidated  repub- 
lic. -But  this  purpose,  if  ever  entertained  at  all,  could  not  be  fol- 
lowed by  the  framers  of  the  Constitution.  They  found  it  indis- 
pensable to  leave  the  states  still  in  possession  of  their  distinct 
political  organizations,  and  of  all  the  sovereignty  not  necessary  to 
be  conferred  on  the  central  power,  which  they  were  endeavoring 
to  create  by  bringing  the  free  people  of  these  several  communities 
into  some  national  relations  with  each  other.  It  became  necessary, 
therefore,  to  regard  the  peculiar  social  condition  of  each  of  the 
states,  and  to  construct  a system  of  representation  that  would 
place  the  free  inhabitants  of  each  distinct  state  upon  as  near  a 
footing  of  political  equality  with  the  free  inhabitants  of  the  other 
states  as  might,  under  such  circumstances,  be  practicable.  This 


1 They  contained  1,793,407  inhabitants;  the  other  eight  states  had  1,845,595 
when  the  federal  census  of  1790  Avas  taken. 

2 See  the  census  of  1790,  post,  p.  348. 


RULE  OF  SUFFRAGE  IN  THE  SENATE.  343 

could  only  be  done  by  treating  the  slaves  as  an  integral  ])art  of 
the  ])opidation  of  the  states  in  which  they  were  found,  and  by  as- 
suming the  population  of  the  states  as  the  true  basis  of  their  rela- 
tive representation. 

It  was  u])on  this  idea  of  treating  the  slaves  as  inhabitants,  and 
not  as  chattels  or  property,  that  the  original  decision  was  made  in 
the  committee  of  the  whole,  by  which  it  was  at  first  determined 
to  include  them.'  Having  decided  that  there  ought  to  be  an 
equitable  ratio  of  representation,  the  committee  went  on  to  declare 
that  the  basis  of  representation  ought  to  include  the  whole  number 
of  white  and  other  free  citizens  and  inhabitants,  of  every  age,  sex, 
and  condition,  including  those  bound  to  servitude  for  a term  of 
years  ; and  they  then  added  to  the  population  thus  described  three 
fifths  of  all  other  persons  not  comprehended  in  that  description, 
except  Indians  not  paying  taxes.  The  proportion  of  three  fifths 
was  borrowed  from  a rule  which  had  obtained  the  sanction  of  nine 
states  in  Congress,  in  the  year  1783,  when  it  was  proposed  to 
change  the  basis  of  contribution  by  the  states  to  the  expenses  of 
the  Union  from  property  to  population."  At  that  time  the  slave- 
holding states  had  consented  that  three  fifths  of  their  slaves  should 
be  counted  in  the  census  which  was  to  fix  the  amount  of  their 
contributions ; and  they  now  asked  that,  in  the  apportionment  of 
representatives,  these  persons  might  still  be  regarded  as  inhabit-  ^ 
ants  of  the  state  in  the  same  ratio.  The  rule  was  adopted  in  the 
committee,  with  the  dissent  of  only  two  states,  Hew  Jersey  and 
Delaware ; but  on  the  original  question  of  substituting  an  equita- 
ble ratio  of  representation  for  the  equality  of  suffrage  that  pre- 
vailed under  the  Confederation,  Hew  York  united  with  Hew  Jer- 
sey and  Delaware  in  the  opposition,  and  the  vote  of  Maryland 
was  divided. 

The  next  step  was  to  settle  the  rule  of  suffrage  in  the  Senate ; 

' Tlie  population  of  the  states  was  adopted  in  the  committee  of  the  wliole,  in- 
stead of  their  quotas  of  contribution,  whicli,  in  one  or  another  form,  was  the  alter- 
native proposition.  The  slaves  were  included,  in  a jDroportion  accounted  for  in 
the  text,  as  a part  of  the  aggregate  'po'pulation  ; and  it  was  not  until  a subsequent 
stage  of  the  proceedings  that  this  result  was  defended  on  the  ground  of  their 
forming  part  of  the  aggregate  loealth  of  the  state. 

Ante,  p.  144,  note  2,  where  the  origin  of  the  proportion  of  three  fifths  is 
e.xplained. 


U4: 


CONSTITUTIONAL  HISTORY. 


and,  although  it  was  earnestly  contended  that  the  smaller  states 
would  never  agree  to  any  other  principle  than  an  equality  of  votes 
in  that  body,'  it  was  determined  in  the  committee,  by  a vote  of 
six  states  against  five,  that  the  ratio  of  representation  should  be 
the  same  as  in  the  first  branch." 

Thus  it  appears  that  originally  a majority  of  the  states  were 
in  favor  of  a numerical  representation  in  both  branches.  The 
three  states  of  Virginia,  Pennsylvania,  and  Massachusetts,  the 
leading  states  in  population,  and  with  them  North  Carolina,  South 
Carolina,  and  Georgia,  found  it  at  present  for  their  interest  to 
ado])t  this  basis  for  both  houses  of  the  national  legislature.  It 
was  a consequence  of  the  principle  of  numerical  representation 
that  the  slaves  should  be  included;  and  it  does  not  appear  that  at 
this  time  any  delegate  from  a Northern  state  interposed  any  ob- 
jection, except  Mr.  Gerry  of  Massachusetts,  who  regarded  the 
slaves  as  “property,”  and  said  that  the  cattle  and  horses  of  the 
North  might  as  Avell  be  included.  But  the  state  which  he  repre- 
sented was  at  this  time  pressing  for  the  rights  of  population,  and 
for  a system  in  which  population  should  have  its  due  influence ; 
and  her  vote,  as  well  as  that  of  Pennsylvania,  was  accordingly 
given  for  the  principle  Avhich  im’olved  an  admission  of  the  slaves 
into  the  basis  of  representation,  and  for  the  proportion  which  the 
slave  states  were  willing 'to  take. 

These  transactions  in  the  committee  of  the  Avhole  are  quite 
important,  because  they  show  that  the  original  line  of  division 
between  the  states,  on  the  subject  of  representation,  Avas  draAvn 
betAveen  the  states  having  the  preponderance  of  population  and 
the  states  that  AA^ere  the  smallest  in  point  of  numbers.  When 
and  under  Avhat  circumstances  this  line  of  division  changed,  Avhat 
combinations  a nearer  Anew  of  all  the  consequences  of  numerical 
representation  may  have  brought  about,  and  Iioaa"  tlie  conflicting 
interests  AA^ere  finally  reconciled  will  be  seen  hereafter.  M hat 
Ave  are  here  to  record  is  the  declaration  of  the  important  principle 
that  the  legislative  branch  of  the  government  Avas  to  be  one  in 


> By  Mr.  Sherman  and  Mr.  Ellsworth. 

2 Massachusetts,  Pennsylvania,  Virginia,  North  Carolina,  South  Carolina, 
Georgia,  ay,  6;  Connecticut,  New  York,  New  Jersey,  Delaware,  Maryland,  no,  5. 

Elliot,  V-  182. 


NEGATIVE  ON  STATE  LEGISLATION. 


345 

which  the  free  pco])le  of  tlie  states  wei’e  to  be  re])resented,  and  to 
he  I'epresented  according  to  tlie  numbers  of  the  inliabitants  which 
their  respective  states  contained,  counting  those  held  in  servitude 
in  a certain  ratio  only. 

The  general  principles  on  which  the  powers  of  the  national 
legislature  were  to  be  regulated  were  declared  with  a great  de- 
gree of  unanimity.  That  it  ought  to  be  invested  with  all  the  leg- 
islative powers  belonging  to  the  Congress  of  the  Confederation 
as  conceded  by  all.  This  was  followed  by  the  nearly  unanimous 
declaration  of  a principle,  which  was  intended  as  a general  de- 
scription of  a class  of  powers  that  would  require  subsequent  enu- 
meration, namely,  that  the  legislative  power  ought  to  embrace  all 
cases  to  which  the  state  legislatures  were  incompetent,  or  in  which 
the  harmony  of  the  United  States  would  be  interrupted  by  the  ex- 
eicise  of  state  legislation.  Uut  the  committee  also  went  much  fur- 
ther, and  without  discussion  or  dissent  declared  that  there  ought 
also  to  be  a power  to  negative  all  laws  passed  by  the  several  states 
contravening,  in  the  opinion  of  the  national  legislature,  the  Articles 
of  Union,  or  any  treaties  made  under  the  authority  of  the  Union.’ 

The  somewhat  crude  idea  of  making  a negative  on  state  legis- 
lation a legislative  power  of  the  national  government  shows  that 
the  admirable  discovery  had  not  yet  been  made  of  exercising  such 
a control  through  the  judicial  department.  Without  such  a con-  ' 
trol  lodged  somewhere,  the  national  prerogatives  could  not  be 
defended,  however  extensive  they  might  be  in  theory.  There  had 
been,  as  Mr.  Madison  well  remarked,  a constant  tendency  in  the 
states  to  encroach  on  the  federal  authority,  to  violate  national 
treaties,  to  infringe  the  rights  and  interests  of  each  other,  and  to 
oppress  the  weaker  party  within  their  respective  jurisdictions. 
The  expedient  that  seemed  at  first  to  be  the  proper  reined}^,  and, 
as  was  then  supposed,  the  only  one  that  could  be  employed  as  a 
substitute  for  force,  was  to  give  the  general  government  a power 
similar  to  that  which  had  been  exercised  over  the  legislation  of 
the  colonies  by  the  crown  of  England,  before  the  Kevolution ; and 
there  were  some  important  members  of  the  Convention  who  at 
this  time  thought  that  this  power  ought  to  be  universal.^  They 


’ Madison,  Elliot,  V.  139. 

^ Mr.  Madison,  Mr.  Wilson,  Mr.  C.  Pinckney,  Mr.  Dickinson.  On  the  other 


34G  ■ CONSTITUTIONAL  HISTORY. 

considered  it  impracticable  to  draw  a line  between  the  cases  prop- 
er and  improper  for  the  exercise  of  such  a negative,  and  they  ar- 
gued from  the  correctness  of  the  principle  of  such  a power  that 
it  ought  to  embrace  all  cases. 

But  here  the  complex  nature  of  the  government  which  they 
were  obliged  to  establish  made  it  necessary  to  depart  from  the 
theoretical  correctness  of  a general  principle.  The  sovereignty 
of  the  states  would  be  entirely  inconsistent  with  a power  in  the 
general  government  to  control  their  whole  legislation.  As  the 
direct  authority  of  the  national  legislature  w'as  to  extend  only  to 
certain  objects  of  national  concern,  or  to  such  as  the  states  were 
incompetent  to  provide  for,  all  the  political  powers  of  the  states, 
the  surrender  of  wdiich  was  not  involved  in  the  grant  of  powers 
to  the  national  head,  must  remain ; and  if  a general  superintend- 
ence of  state  legislation  were  added  to  the  specific  powers  to  be 
conferred  on  the  central  authority,  there  would  be  in  reality  but 
one  supreme  power  in  all  cases  in  wdiioh  the  general  government 
might  see  fit  to  exercise  its  prerogative.  The  just  and  proper 
sphere  of  the  national  government  must  be  the  limit  of  its  power 
over  the  legislation  of  the  states.  In  that  sphere  it  must  be  su- 
preme, as  the  power  of  each  state  within  its  own  sphere  must  also 
be  supreme.  Neither  of  them  should  encroach  upon  the  prerog- 
atives of  the  other ; and  wliile  it  was  undoubtedly  necessary  to 
arm -the  national  government  with  some  power  to  defend  itself 
against  such  encroachments  on  the  part  of  the  states,  there  could 
be  no  real  necessity  for  making  this  power  extend  beyond  the 
exigencies  of  the  case.  Those  exigencies  wmuld  be  determined  by 
the'’  objects  that  might  be  committed  to  the  legislation  of  the 
central  authority ; and  if  a mode  could  be  devised,  by  wdiich  the 
states  could  be  restrained  from  interfering  with  or  interrupting 
the  just  exercise  of  that  authority,  all  that  was  required  W'oidd  be 
accomplished.' 

But  to  do  this  by  means  of  a negative  that  was  to  be  classed 


hand,  Mr.  Williamson,  Mr.  Sherman,  Mr.  Bedford,  and  Mr.  Butler  strenuously  op- 
posed this  plan. 

’ Accordingly,  a proposition  to  extend  the  negative  on  state  legislation  to  all 
cases  received  the  votes  of  three  states  only,  viz.,  Massachusetts,  Pennsylvania, 
and  Virginia. 


CONTROL  OF  STATE  LEGISLATION. 


347 

among  the  legislative  powers  of  the  new  government,  was  to  com- 
mit the  subject  of  a supposed  conflict  between  the  rights  and 
powers  of  the  state  and  the  national  governments  to  an  unfit 
arbitration.  Such  a question  is  of  a judicial  nature,  and  belongs 
properly  to  a department  that  has  no  direct  interest  in  maintain- 
ing or  enlarging  the  prerogatives  of  the  government  whose  pow- 
ers are  involved  in  it. 

But  the  framers  of  the  Constitution  had  come  fresh  from  the 
inconveniences  and  injustice  that  had  resulted  from  the  unre- 
strained legislative  powers  of  the  states.  Some  of  them  believed 
it,  therefore,  to  be  necessary  to  make  the  authority  of  the  United 
States  paramount  over  the  authority  of  each  separate  state ; and 
a negative  upon  state  legislation,  to  be  exercised  by  the  legislative 
branch  of  the  national  government  seemed  to  be  the  readiest 
way  of  accomplishing  the  object.  Some  of  the  suggestions  of 
the  mode  in  which  this  power  was  to  operate  strike  us,  at  the 
present  day,  as  singularly  strange.  Xo  less  a person  than  Mr. 
Madison,  in  answer  to  the  objections  arising  from  the  practical 
diflaculties  in  subjecting  all  the  legislation  of  all  the  states  to  the 
revision  of  a central  power,  thought  at  this  time  that  something 
m the  nature  of  a commission  might  be  issued  into  each  state,  in 
order  to  give  a temporary  assent  to  laws  of  urgent  necessity. 
He  suggested  also  that  the  negative  might  be  lodged  in  the  Sen- 
ate, in  order  to  dispeoise  with  constant  sessions  of  the  more  nu- 
merous branch. 

But  the  radical  objection  to  any  plan  of  a negative  on  state 
legislation,  as  a legislative  power  of  the  general  government,  was, 
that  it  would  not  in  fact  dispense  with  the  use  of  force  against  a 
state  in  the  last  resort.  If,  after  the  exercise  of  the  power,  the 
state  whose  obnoxious  law  had  been  prohibited  should  see  fit  to 
persist  in  its  course,  force  must  be  resorted  to  as  the  only  ultimate 
remedy.  How  different,  how  wise,  was  the  expedient  subsequent- 
ly devised,  Avhen  the  appropriate  office  of  the  judicial  power  was 
discerned— a power  that  waits  calmly  until  the  clashing  authori- 
ties of  the  state  and  the  nation  have  led  to  a conflict  of  right  or 
duty  in  some  individual  case,  and  then  peacefully  adjudicates,  in 
a case  of  private  interest,  the  great  question,  with  which  of  the 
two  governments  resides  the  power  of  prescribing  the  paramount 
rule  of  conduct  for  the  citizen  ! Disobedience  on  the  part  of  the 


348 


CONSTITUTIONAL  HISTORY. 


state  may,  it  is  true,  still  follow  after  such  an  adjudication,  and 
against  an  open  array  of  force  on  the  one  side  nothing  but  force 
remains  to  be  employed  on  the  other.  But  the  great  preventive 
of  this  dread  necessity  is  found  in  the  fact  that  there  has  been  an 
adjudication  by  a tribunal  that  commands  the  confidence  of  all, 
and  in  the  moral  influence  of  judicial  determinations  over  a peo- 
ple accustomed  to  submit  not  only  their  interests,  but  their  feel- 
ings even,  to  the  arbitrament  of  juridical  discussion  and  decision. 


TABLE 

EXHIBITING  THE  POPULATIONS  OP  THE  THIRTEEN  STATES,  ACCORDING  TO  THE 

CENSUS  OF  1790. 

N.B. — In  tliis  aljstract  Maine  is  not  included  in  Massachusetts,  nor  Kentucky 
and  Tennessee  in  the  states  from  which  they  were  severed. 


Whites.  j 

Free  Colored. 

Slaves. 

Total. 

New  Hampshire 

141,111 

630 

158 

141,899 

Massachusetts 

373,254 

5,463 

378,717 

Rhode  Island 

64.689 

3,469 

952 

69,110 

Connecticut 

232,581 

2,801 

2,759 

238,141 

New  York 

314,142 

4,654 

21,324 

340,120 

New  Jersev 

169,954 

2,762 

11,423 

184,139 

Pennsylvania 

424.099 

6,537 

3,737 

434,373 

Delaware 

46,310 

3,899 

8,887 

59,096 

Maryland 

208,649 

8,043 

103,036 

319,728 

Virginia 

442,115 

12,765 

293,427 

748,307 

Nortli  Carolina 

288,204 

4,975 

100,572 

393,751 

South  Carolina 

140,178 

1,801 

107,094 

249,073 

Georgia 

52,886 

398 

29,264 

82,548 

Aggregate 

2,898,172 

58,197 

682,633 

3,639,002 

Total  population  of  the  eight  states  in  1790,  in  which  slavery  had  been  or 
was  afterwards  abolished,  1,845,595. 

Total  population  of  the  five  states  in  1790,  in  which  slavery  existed  and  con- 
tinued to  exist,  1,793,407. 


CHAPTEE  XIX. 

Construction  of  the  Executive  and  the  Judiciaet. 

The  construction  of  a national  executive,  although  not  sur- 
rounded by  so  many  inherent  practical  difficulties  as'^the  forma- 
tion of  the  legislative  department,  was  likely  to  give  rise  to  a 
gloat  many  opposite  theories.  The  questions,  of  how  many  per- 
sons the  executive  ought  to  consist,  in  what  mode  the  appoint- 
ment should  be  made,  and  what  were  to  be  its  relations  to  the 
legislative  power,  were  attended  with  great  diversities  of  opinion. 

The  question  whether  the  executive  should  consist  of  one,  or 
of  more  than  one  person,  ivas  likely  to  be  influenced  by  the  nature 
of  the  powers  to  be  conferred  upon  the  office.  Foreseeing  that 
It  must  necessarily  be  an  office  of  great  power,  some  of  the  mem- 
bers of  the  Convention  thought  that  a single  executive  would  ap- 
proach too  nearly  to  the  model  of  the  British  government  These 
persons  considered  that  the  great  requisites  for  an  executive  de- 
partment-vigor, despatch,  and  responsibility— could  be  found  in 
three  pemons  as  well  as  in  one.  Those,  on  the  other  hand,  who 
favored  the  plan  of  a single  magistrate,  maintained  that  the  pre- 
rogatives of  the  British  monarchy  would  not  necessarily  furnish 
the  model  for  the  executive  powers ; and  that  unity  in  the  ex- 
ecutive  would  be  the  best  safeguard  against  tyranny. 

But  this  point  connected  itself  ivith  the  question  whether  the 
executive  should  be  surrounded  by  a council,  and  the  latter  prop- 
osition again  involved  the  consideration  of  the  precise  relation 
ot  the  executive  to  the  legislative  power.  That  a negative  of 
some  ind  upon  the  acts  of  the  legislature  was  essential  to  the 
independence  of  the  executive  was  a truth  in  political  science  not 
yely  to  escape  the  attention  of  , many  of  the  members  of  the 
Convention.  Whetlier  it  should  be  a qualified  or  an  absolute 
negative  was  the  real,  and  almost  the  sole  question;  for  althouo-h 
there  were  some  who  held  the  opinion  that  no  such  power  ought 


CONSTITUTIONAL  HISTORY. 


350 

to  be  given,  it  w<is  evident  from  tlie  first  that  its  necessity  was 
well  understood  by  the  larger  part  of  the  assembly.  In  the  first 
discussion  of  this  subject,  the  negative  was  generally  regarded  as 
a means  of  defence  against  encroachments  of  the  legislature  on 
the  rights  and  powers  of  the  other  departments.  It  was  supposed 
that,  although  the  boundaries  of  the  legislative  authority  might 
be  marked  out  in  the  Constitution,  the  executive  would  need  some 
check  against  unconstitutional  interference  with  its  own  pre- 
rogatives ; and  that,  as  the  judicial  department  might  be  exposed 
to  the  same  dangers,  the  power  of  resisting  these  also  could  be 
best  exercised  by  the  executive.  But  an  absolute  negative  for 
any  purpose  was  favored  by  only  a very  few  of  the  members,  and 
the  proposition  first  adopted  was  to  give  the  executive  alone  a re- 
visionary check  upon  legislation,  which  should  not  be  absolute  if 
it  were  afterwards  overruled  by  two  thirds  of  each  branch  of  the 
legislature.’ 

But  inasmuch  as  this  provision  would  leave  the  precise  pur- 
poses of  the  check  undetermined,  and  in  order,  as  it  would  seem, 
to  subject  the  whole  of  the  legislative  acts  to  revision  and  control 
by  the  executive,  some  of  the  members  desired  that  the  judiciary, 
or  a convenient  number  of  the  judges,  might  be  added  to  the  execu- 
tive as  a council  of  revision.  Among  these  persons  were  Mr. 
Madison  and  Mr.  Wilson.  The  former  expressed  a very  decided 
opinion  that,  whether  the  object  of  a revisionary  power  was  to 
restrain  the  encroachments  of  the  legislature  on  the  othei  depait- 
ments,  or  on  the  rights  of  the  people  at  large,  or  to  prevent  the 
passage  of  laws  unwise  in  principle  or  incorrect  in  form,  there 
would  be  great  utility  in  annexing  the  wisdom  and  w^eight  of  the 
judiciary  to  the  executive.  But  this  proposition  was  rejected  by 
a large  majority  of  the  states,  and  the  power  was  left  by  the 
comnTittee  as  it  had  been  settled  by  their  former  decision.  These 
proceedings,  however,  do  not  furnish  any  decisive  evidence  of 
the  nature  and  purpose  of  the  revisionary  check. 

But  before  this  feature  of  the  Constitution  had  been  settled  by 
the  committee,  they  had  determined  on  a mode  in  which  the  ex- 
ecutive should  be  appointed.  It  is  singular  that  the  idea  of  an 


1 Adopted  by  the  votes  of  eight  stfites  ngaiiist  two— Connecticut  and  Mary- 
land voting  in  the  negative. 


election  of  tlic  executive  by  the  people,  either  inedintely  or  im- 
mediately, found  so  little  favor  at  first  that  on  its  first  introduc- 
tion it  received  the  votes  of  hut  two  states.  Since  the  executive 
was  to  be  the  agent  of  the  legislative  will,  it  was  argued  by  some 
members  tliat  it  ought  to  he  wholly  dependent,  and  ought  there- 
fore to  he  chosen  by  the  legislature.  The  experience  of  New  York 
and  of  Massachusetts,  on  the  other  hand— where  the  election  of 

the  first  magistrate  by  the  people  had  been  successfully  practised 

and  the  danger  that  the  legislature  and  the  candidates  might  play 
into  each  other’s  hands,  and  thus  give  rise  to  constant  intrigues 
for  the  office,  were  the  arguments  employed  by  others.  Upon  the 
introduction  of  a proposition  that  the  states  be  divided  into  dis- 
tricts, for  the  election  by  the  people  of  electors  of  the  executive, 
two  states  only  recorded  their  votes  in  its  favor,  and  eight  states 
voted  against  it.‘  By  the  vote  of  eight  states  it  was  then  deter- 
mined that  the  executive  should  be  elected  by  the  national  legisla- 
ture for  the  term  of  seven  years  f and  subsequently  it  was  deter- 
mined that  the  executive  should  be  ineligible  to  a second  term  of 
office,  and  should  be  removable  on  impeachment  and  conviction  of 
malpractice  or  neglect  of  duty.  A single  executive  was  agreed  to 
by  a vote  of  seven  states  against  three.'’  After  the  mode  in  which 
the  negative  was  to  be  exercised  had  been  settled,  an  attempt  was 
made  to  change  the  appointment,  and  vest  it  in  the  executives  of 
the  states.  But  this  proposal  was  decisively  rejected.^ 

The  judiciary  was  the  next  department  of  the  proposed  plan 
of  govern.ment  that  remained  to  be  provided.  Like  the  execu- 
tive, It  was  a branch  of  sovereign  power  unknown  to  the  Con- 
federation. The  most  palpable  defect  of  that  government,  as  I 
have  more  than  once  had  occasion  to  observe,  was  the  entire  want 
of  sanction  to  its  laws.  It  had  no  Judicial  system  of  its  own  for 
decree  and  execution  against  individuals.  AO  its  legislation,  both 
m nature  and  form,  prescribed  duties  to  states.  The  observance 
o these  duties  could  only  be  enforced  against  the  parties  on  whom 
hey  rested,  and  this  could  be  done  only  by  military  power.  But 

‘ Petmsylvauia,  M.iryland,  ap,  3;  Massachusetts,  Connecticut,  New  York 
Delaware,  Virgini.a,  North  Carolina,  South  Carolina,  Georgia,  no,  8. 

* Pennsylvania  and  iMaryland,  7io. 

' New  York,  Delaware,  and  Maryland,  7io. 

‘ Nine  states  voted  against  it,  and  one  (Delaware)  was  divided. 


352 


CONSTITUTIONAL  HISTORY. 

it  AVAS  the  peculiar  and  anomalous  situation  of  the  American  Con- 
federacy that  the  power  to  employ  force  against  its  delinquent 
members  had  not  been  expressly  delegated  to  it  by  the  Articles  of 
Union  ; and  tliat  it  could  not  be  implied  from  the  general  purposes 
and  provisions  of  that  instrument  Avithout  a seeming  infraction  of 
the  article  by  Avhich  the  states  had  reserved  to  themselves  every 
power,  jurisdiction,  and  right  not  “expressly”  delegated  to  the 
United  States.  If  this  objection  Avas  Avell  founded — and  it  Avas 
universally  held  to  be  so  — Ave  may  Avell  concur  in  the  remark 
of  the  Federalist,  that  “the  United  States  presented  the  ex- 
traordinary spectacle  of  a government  destitute  even  of  the 
shadow  of  constitutional  poAver  to  enforce  the  execution  of  its 
own  laws.”' 

The  Confederation,  too,  had  found  it  to  be  entirely  impracti- 
cable to  rely  on  the  tribunals  of  the  states  for  the  execution  of  its 
laws.  Such  a reliance  in  a confederated  government  presupposes 
that  the  party  guilty  of  an  infraction  of  the  laws  or  ordinances  of 
the  confederacy  will  try,  condemn,  and  punish  itself.  The  t\  hole 
history  of  our  Confederation  evinces  the  futility  of  laws  requiring 
the  obedience  of  states,  and  proceeding  upon  the  expectation  that 
they  will  enforce  that  obedience  upon  themselves. 

The  necessity  for  a judicial  department  in  the  general  govern- 
ment was,  therefore,  one  of  the  most  prominent  of  those  “exi- 
gencies of  the  Union”  for  which  it  was  the  object  of  the  present 
undertaking  to  provide.  The  place  which  that  department  was 
to  occupy  in  a national  system  could  be  clearly  deduced  from  the 
office  of  the  judiciary  in  all  systems  of  constitutional  government. 
That  office  is  to  apply  to  the  subjects  of  the  government  the  pen- 
alties inflicted  by  the  legislative  power  for  disobedience  of  the 
laws.  Disobedience  of  the  lawful  commands  of  a government 
may  bo  punished  or  prevented  in  two  modes.  It  may  be  done  by 
the  application  of  military  power,  without  adjudication ; or  it  may 
be  done  through  the  agency  of  a tribunal,  which  adjudicates,  ascer- 
tains the  guilty  parties,  and  applies  to  them  the  coercion  of  the 
civil  power.  This  last  is  the  peculiar  function  of  a judiciary ; 
and,  in  order  that  it  may  be  discharged  effectually,  the  judiciary 
that  is  to  perform  this  office  must  be  a part  of  the  government 


1 The  Federalist,  No.  31. 


OFFICE  OF  A JUDICIARY. 


353 


whose  laws  it  is  to  enforce.  It  is  essential  to  the  supremacy  of  a 
government  that  it  should  adjudicate  on  its  own  powers  and  en- 
force its  own  laws ; for  if  it  devolves  this  prerogative  on  another 
and  subordinate  authority  the  final  sanction  of  its  laws  can  only 
be  by  a resort  to  military  power  directed  against  those  who  have 
refused  to  obey  its  lawful  commands. 

One  of  the  leading  objects  in  forming  the  Constitution  was  to 
obtain  for  the  United  States  the  means  of  coercion  without  a resort 
to  force  against  the  people  of  the  states  collectively.  Mr.  Madison, 
at  a very  early  period  in  the  deliberations  of  the  Convention,  de- 
clared that  the  use  of  force  against  a state  would  be  more  like  a 
declaration  of  war  than  an  infliction  of  punishment,  and  would 
probably  be  considered  by  the  party  attacked  as  a dissolution  of 
all  previous  compacts  by  which  it  might  be  bound. ‘ At  his  sug- 
gestion a clause  in  Governor  Eandolph’s  plan  authorizing  the  use 
of  force  against  a delinquent  member  of  the  Confederacy  was  laid 
aside,  in  order  that  a system  might  be  framed  which  would  render 
it  unnecessary.  This  could  be  done  only  by  making  the  authority 
of  the  government  supreme  in  relation  to  the  rights  and  powers 
that  might  be  committed  to  it ; and  it  could  be  made  so  only  by 
applying  its  legislation  to  individuals  through  the  intervention  of 
a judiciary.  A confederacy  whose  legislative  power  operates  only 
upon  states,  or  upon  masses  of  people  in  a collective  capacity,  can 
be  supreme  only  so  far  as  it  can  employ  superior  force ; and  when 
the  issue  that  is  to  determine  the  question  of  supremacy  is  once 
made  up  in  that  form  there  is  an  actual  civil  war. 

The  introduction,  therefore,  of  a judicial  department  into  the 
new  plan  of  government  of  itself  evinces  an  intention  to  clothe 
that  government  with  powers  that  could  be  executed  peacefully, 
and  without  the  necessity  of  putting  down  the  organized  opposi- 
tion of  subordinate  communities.  By  their  resort  to  this  great 
instrumentality  Ave  may  perceive  how  much,  in  this  particular, 
the  framers  of  the  Constitution  Avere  aided  by  the  spirit  and  forms 
of  the  institutions  Avhich  the  people  of  these  states  had  already 
framed  for  their  separate  gOA^ernments.  The  common  laAAq  Avhich 
the  founders  of  all  these  states  had  brought  Avith  them  to  this 
country,  had  accustomed  them  to  regard  the  judiciary  as  clothed 


I.— 23 


^ Madison,  Elliot,  V.  p.  140. 


854 


CONSTITUTIONAL  HISTORY. 


with  functions  in  which  two  important  objects  were  embraced. 
By  the  known  course  of  that  jurisprudence  the  judiciary  is,  in  the 
first  place,  the  department  which  declares  the  construction  of  the 
laws ; and,  in  the  second  place,  when  that  department  has  an- 
nounced the  construction  of  a law,  it  is  not  only  the  particular 
case  that  is  settled,  but  the  rule  is  promulgated  that  is  to  deter- 
mine all  future  cases  of  the  same  kind  arising  under  the  same  law. 
Thus  the  judiciary,  in  governments  whose  adjudications  proceed 
upon  the  course  of  the  common  law,  becomes  not  merely  the  arbi- 
trator in  a particular  controversy,  but  the  department  through 
which  the  government  interprets  the  rule  of  action  prescribed 
by  the  legislature,  and  by  which  all  its  citizens  are  to  be  guided. 
This  office  of  the  judicial  department  had  long  been  known  in  all 
the  states  of  the  Union  at  the  time  of  the  formation  of  the  national 
Constitution. 

By  the  introduction  of  this  department  into  their  plan  of 
government  the  framers  of  the  Constitution  obviously  intended 
that  it  should  perform  the  same  office  in  their  national  system 
which  the  corresponding  department  had  always  fulfilled  in  the 
states.  No  other  function  of  a judiciary  was  known  to  the  peo- 
ple of  the  United  States,  and  this  function  was  both  known  and 
deemed  essential  to  a well-regulated  liberty.  It  w^as  known  that 
the  judicial  department  of  a government  is  that  branch  by  which 
the  meaning  of  its  laws  is  ascertained,  and  applied  to  the  conduct 
of  individuals.  To  effect  this,  it  was  introduced  into  the  sys- 
tem whose  gradual  formation  and  development  we  are  now  ex- 
amining. 

The  committee  not  only  declared  that  this  department,  like 
the  legislative  and  the  executive,  Avas  to  be  supreme,  but  they 
proceeded  to  make  it  so.  One  of  the  first  questions  that  arose 
concerning  the  construction  of  the  judiciary  was,  whether  it 
should  consist  solely  of  one  central  tribunal,  to  Avhich  appeals 
might  be  carried  from  the  state  courts,  or  should  also  embrace 
inferior  tribunals  to  be  established  Avithin  the  seAmral  states.  The 
latter  plan  Avas  resisted  as  an  innovation  Avhich,  it  Avas  said,  the 
states  would  not  tolerate.  But  the  necessity  for  an  effective  judici- 
ary establishment  commensurate  with  the  legislatiAm  authority  Avas 
generally  admitted,  and  a large  majority  of  the  states  Avere  found 
to  be  in  favor  of  conferring  on  the  national  legislature  power 


.JUDICIAL  CONTROL  OVER  STATE  LEGISLATION.  355 

to  establish  inferior  tribunals;*  wliile  tlie  provision  for  a supreme 
central  tribunal  was  to  bo  made  imperative  by  the  Constitution. 

The  intention  of  the  committee  also  to  make  tlie  judicial  coex- 
tensive with  the  legislative  authority  appears  from  tlie  definition 
wliich  they  gave  to  both.  Upon  tlie  national  legislature  they 
, proposed  to  confer,  in  addition  to  the  rights  vested  in  Congress  by 
the  Confederation,  power  to  legislate  in  all  cases  to  which  the 
separate  states  were  incompetent,  or  in  which  the  harmony  of  the 
United  States  might  be  interrupted  by  the  exercise  of  individual 
legislation ; and  the  further  power  to  negative  all  laws  passed  by 
the  several  states  contravening,  in  the  opinion  of  the  national 
legislature,  the  Articles  of  Union,  or  any  treaties  subsisting  under 
the  authority  of  the  Union.  The  jurisdiction  of  the  national  judi- 
ciary, it  was  declared,  should  extend  to  all  cases  which  respect  the 
collection  of  the  national  revenue  and  to  impeachments  of  national 
officers ; and  then  the  comprehensive  addition  was  made  of  “ques- 
tions which  involve  the  national  peace  and  harmony.”  This  latter 
provision  placed  the  general  objects  which,  it  was  declared,  ought 
to  be  embraced  by  the  legislative  power,  within  the  cognizance  of 
the  judiciary.  Those  objects  were  not  yet  described  in  detail,  the 
purpose  being  merely  to  settle  and  declare  the  principles  on  which 
the  powers  of  both  departments  ought  to  be  founded. 

But,  as  we  have  already  had  occasion  to  see,  the  idea  of  vesting 
in  the  judicial  department  such  control  over  the  legislation  of  the 
separate  states  as  might  be  surrendered  by  them  to  the  national 
government  was  not  yet  propounded.  The  principle  which  was 
■to  ascertain  the  extent  of  that  control  was  already  introduced  and 
acted  upon,  namely,  that  it  should  embrace  all  laws  of  the  states 
which  might  conflict  with  the  Constitution  or  the  treaties  made 
under  the  national  authority.  The  plan  at  j^iesent  was,  as  we 
have  seen,  to  treat  this  as  a legislative  power,  to  be  executed  by 
the  direct  control  of  a negative.  But  a nearer  view  of  the  great 
inconveniences  of  such  an  arrangement,  and  the  general  baSs  of 
the  jurisdiction  already  marked  out  for  the  national  judiciary,  led 
to  the  development  of  the  particular  feature  which  was  required 
as  a substitute  for  direct  interference  with  the  legislative  powers 
of  the  states.  In  truth,  the  important  principle  which  proposed 


Eight  states  in  the  affirmative,  two  in  the  negative,  and  one  divided. 


356  CONSTITUTIONAL  HISTORY. 

to  extend  the  judicial  authority  to  questions  involving  the  national 
peace  and  harmony  embraced  all  the  power  that  was  required ; 
and  it  only  remained  to  be  seen  that  the  exercise  of  that  power 
by  the  indirect  effect  of  judicial  action  on  the  laws  of  the  states 
after  they  had  been  passed  was  far  preferable  to  a direct  inter- 
ference  with  those  laws  while  in  the  process  of  enactment. 

The  committee,  with  complete  unanimity,  determined  that 
the  judges  of  the  supreme  tribunal  should  hold  their  offices  during 
good  behavior.^  This  tenure  of  office  was  taken  from  the  English 
statutes,  and  from  the  constitutions  of  some  of  the  states  which 
had  already  adopted  it.  The  commissions  of  the  judges  in  Eng- 
land, until  the  year  1700,  were  prescribed  by  the  crown  ; and  al- 
though they  were  sometimes  issued  to  be  held  during  good  behav- 
ior, they  were  generally  issued  during  the  pleasure  of  the  crown, 
and  it  was  always  optional  Avith  the  crown  to  adopt  the  one  or 
the  other  tenure,  as  it  saAV  fit.  But  in  the  statute  passed  in  the 
thirteenth  year  of  the  reign  of  William  III.,  Avhich  finally  secured 
the  ascendency  of  the  Protestant  religion  in  that  country,  and 
made  other  provisions  for  the  rights  and  liberties  of  the  subject, 
it  was  enacted  that  judges’  commissions  should  be  made  during 
good  behavior,  and  that  their  salaries  should  be  ascertained  and 
established;  but  it  Avas  made  laAvful  for  the  croAvn  to  remove 
them  upon  the  address  of  both  houses  of  Parliament."  Still,  Iioaa^- 
eAmr,  it  Avas  ahvays  considered  that  the  commissions  of  the  judges 
expired  on  the  death  of  the  king ; and  for  the  purpose  of  prevent- 
ing this,  and  in  order  to  make  the  judges  more  effectually  inde- 
pendent, a new  statute,  passed  in  the  first  year  of  the  reign  of 
George  III.,  declared  that  the  commissions  of  the  judges  should 
continue  in  force  during  their  good  behavior,  notAvithstanding  the 
demise  of  the  crown ; and  that  such  salaries  as  had  been  once 
granted  to  them  should  be  paid  in  all  future  time,  so  long  as  their 
commissions  should  remain  in  force.  The  provision  Avhich  made 
them  removable  by  the  crown  on  the  address  of  both  houses  of 
Parliament  Avas  retained  and  re-enacted. 

In  framing  the  Constitution  of  the  United  States,  the  objection- 
able feature  of  the  English  system  Avas  rejected,  and  its  valuable 


1 This  was  afterwards  applied  to  the  judges  of  the  inferior  courts  also. 

= Act  12  and  13  William  III.,  ch.  2.  " Act  1 Geo.  III.,  ch.  23. 


JUDICIAL  TENURE. 


357 

provisions  were,  retained.  No  one,  at  the  stage  of  the  proceedings 
which  we  are  now  examining,  pro})osed  to  make  the  judges  re- 
movable on  the  address  of  the  legislature  ; and  although  at  a 
much  later  period  this  provision  was  brought  forward,  it  received 
the  vote  of  a single  state  only.  The  first  determination  of  the 
Convention,  in  committee  of  the  whole,  was,  that  the  judges  should 
hold  their  offices  during  good  behavior ; that  they  should  receive 
punctually,  at  stated  times,  a fixed  compensation  for  their  services, 
in  which  no  increase'  or  diminution  should  be  made  so  as  to  affect 
the  persons  actually  in  office  at  the  time. 

The  appointment  of  the  judges  was  by  general  consent,  at  this 
stage  of  the  proceedings,  vested  in  the  Senate. 


* This  was  afterwards  stricken  out. 


CHAPTEK  XX. 

Admission  of  Xew  States. — Guarantee  of  Kepublican  Govern- 
ment.—Power  OF  Amendment.— Oath  to  Support  the  Xew 
System. — Katification. 

Having  settled  a general  plan  for  the  organization  of  the  three 
great  departments  of  government, -the  committee  next  proceeded 
to  provide  for  certain  other  objects  of  primarj^  importance,  the 
necessity  for  which  had  been  demonstrated  by  the  past  history  of 
the  Confederacy.  The  first  of  these  was  the  admission  of  new 
states  into  the  Union. 

It  had  long  been  apparent  that  the  time  would  sooner  or  later 
arrive  when  the  limits  of  the  United  States  must  be  extended,  and 
the  number  of  the  states  increased.  Circumstances  had  made  it 
impossible  that  the  benefits  and  privileges  of  the  Union  should  be 
confined  to  the  original  thirteen  communities  by  whom  it  had  been 
established.  Population  had  begun  to  press  westward  from  the 
Atlantic  States  with  the  energy  and  enterprise  that  have  marked 
the  An  o-lo- American  character  since  the  first  occupation  of  the 
country^  Wherever  the  hardy  pioneers  of  civdization  penetrated 
into  the  wilderness  of  the  Northwest,  they  settled  upon  lands  em- 
braced by  those  shadowy  boundaries  which  carried  tlie  territorial 
claims  of  some  of  the  older  states  into  the  region  beyond  tlie  Ohio 
Circumstances,  already  detailed  in  a former  part  of  this  woA,  hai 
compelled  a surrender  of  these  territorial  claims  to  the  Unitei 
States;  and  in  the  efforts  made  by  Congress,  both  before  and 
after  the  cessions  had  been  completed,  to  provide  for  the  estab- 
lishment of  new  states  and  for  their  admission  into  the  Umon, 
we  have  already  traced  one  of  the  great  defects  of  the  Confedera- 
tion, which  rendered  it  incapable  of  meeting  the  exigencies  created 
by  this  inevitable  expansion  of  the  country . 


’ Ante,  Clinp.  XIV. 


ADMISSION  OF  NEW  STATES.  359 

In  tlic  year  T7S-I,  when  ]\rr.  Jefferson  brouglit  into  Congress  a 
measure  for  the  organization  and  admission  of  new  states,  to  be 
formed  upon  the  territories  that  had  been  or  might  tliereafter  be 
ceded  to  the  United  States,  he  seems  to  have  considered  that  the 
Articles  of  Confederation  authorized  the  admission  of  new  states 
foinied  out  of  territory  that  had  belonged  to  a state  already  in  the 
Union,  by  a vote  of  nine  states  in  Congress.  But  a majority  of 
the  states  in  Congress  evidently  regarded  the  power  of  admission 
as  doubtful  5 and  although  they  passed  the  resolves  for  the  admis- 
sion of  new  states — principally  because  it  was  extremely  important 
to  invite  cessions  of  western  territory— they  left  the  provision  as 
to  the  mode  of  admission  so  indefinite  that  the  whole  question  of 
power  would  have  to  be  opened  and  decided  on  the  first  applica- 
tion that  might  be  made  by  a state  to  be  admitted  into  the  Union.' 


1 Mr.  Jefferson  has  very  lucidly  stated  the  position  of  the  question  in  some 
observations  furnislied  by  him,  when  in  Paris,  to  one  of  tlie  editors  of  the  Ency- 
clophiie  Methodiqiie^  in  1786  or  1787,  whicli  I liere  insert  entire.  “The  eleventh 
Article  of  Confederation  admits  Canada  to  accede  to  the  Confederation  at  its 
own  will,  but  adds,  ‘no  other  colony  shall  be  admitted  to  the  same  unless  such 
admission  be  agreed  to  by  nine  states.’  When  the  plan  of  April,  1784,  for  estab- 
lishing new  states,  was  on  the  carpet,  the  committee  who  framed  the  report  of 
that  plan  had  inserted  this  clause:  ‘Provided  nine  states  agree  to  such  admis- 
sion, according  to  the  reservation  of  the  eleventh  of  the  Articles  of  Confedera- 
tion.’ It  was  objected-1.  Tliat  the  words  of  the  Confederation,  ‘ no  other  col- 
ony,’ could  refer  only  to  the  residuary  possessions  of  Great  Britain,  as  the  two 
Floridas,  Nova  Scotia,  etc.,  not  being  already  parts  of  the  Union;  that  the  law 
for ‘ admitting’ a new  member  into  the  Union  could  not  be  applied  to  a terri- 
tory which  was  already  in  the  Union,  as  making  part  of  a state  which  was  a 
member  of  it.  2.  That  it  would  be  improper  to  allow  ‘ nine  ’ states  to  receive  a 
new  member,  because  the  same  reasons  which  rendered  that  number  jDroper  now 
would  render  a greater  one  proper  when  the  number  composing  the  Union 
should  be  increased.  They  therefore  struck  out  this  paragraph,  and  inserted  a 
proviso,  that  ‘ the  consent  of  so  many  states  in  Congi-ess  shall  be  first  obtained 
as  may  at  the  time  be  competent ;’  thus  leaving  the  question  whether  the  eleventh 
article  applies  to  the  admission  of  new  states  to  be  decided  when  that  admis- 
sion shall  be  asked.  See  the  Journal  of  Congress  of  April  20th,  1784.  Another 
doubt  was  started  in  this  debate,  viz.,  whether  the  agreement  of  the  nine  states 
required  by  the  Confederation  was  to  be  made  by  their  legislatures,  or  by  their 
delegates  in  Congress  ? The  expression  adopted,  viz.,  ‘ so  many  states  in  Congress 
is  first  obtained,’  shows  what  was  their  sense  of  this  matter.  If  it  be  agreed'^that 
the  eleventh  Article  of  the  Confederation  is  not  to  be  applied  to  the  admission 


360 


CONSTITUTIONAL  HISTORY. 


When  the  Ordinance  of  1787  was  formed,  it  made  provision 
for  the  establishment  of  new  states  in  the  territory,  and  declared 
that,  when  any  of  them  should  have  sixty  thousand  free  inhabi- 
tants, it  should  be  admitted  into  Congress  on  an  equal  footing  with 
the  original  states.  But  the  mode  of  admission  was  not  prescribed. 

of  these  new  states,  then  it  is  contended  that  their  admission  comes  within  the 
thirteenth  article,  which  forbids  ‘ any  alteration  unless  agreed  to  in  a Congress 
of  the  United  States,  and  afterwards  confirmed  by  the  legislatures  of  every 
state.’  The  independence  of  the  new  states  of  Kentucky  and  Franklin  will  soon 
bring  on  tlm  ultimate  decision  of  all  these  questions.”  (Jefferson’s  Works,  IX. 
251).  That  the  admission  of  a new  state  into  the  Union  could  have  been  re- 
garded as  an  alteration  of  the  Articles  of  Confederation,  within  the  meaning  and 
intention  of  the  thirteenth  article,  seems  scarcely  probable.  Such  an  admission 
would  only  have  increased  the  number  of  the  parties  to  the  Union,  but  it  would  of 
itself  have  made  no  change  in  the  Articles;  and  it  was  against  alterations  in  the 
Articles  that  the  provision  of  the  thirteenth  was  directed.  The  objections  which 
Mr.  Jefferson  informs  us  were  raised  in  Congress  to  a deduction  of  the  power 
from  the  eleventh  article,  appear  to  be  decisive.  In  truth,  when  the  Articles  of 
Confederation  were  framed,  the  subject  of  the  admission  of  new  states,  so  far  as 
it  had  been  considered  at  all,  was  connected  with  the  difficult  and  delicate  con- 
troversy respecting  the  western  boundaries  of  some  of  the  old  states,  and  the 
equitable  claim  oflhe  Union  to  become  the  proprietor  of  the  unoccupied  lands 
beyond  those  boundaries.  An  attempt  was  made  to  obtain  for  Congress,  hi  the 
Articles  of  Confederation,  power  to  ascertain  and  tix  the  western  boundaries  of 
those  states,  and  to  lay  out  the  lands  beyond  them  into  new  states.  But  it  failed 
(ante,  p.  19G),  and  Congress  could  thereafter  be  said  to  possess  no  power  to  ad- 
mit new  states,  except  what  depended  on  a doubtful  construction  of  the  Aiticles 
of  Confederation. 

Still,  both  when  they  invited  the  cessions  of  their  territorial  claims  by  the 
states  of*  Virginia,  New  York,  etc.,  and  after  those  cessions  had  been  made,  Coii- 
oress  acted  as  if  they  had  constitutional  authority  to  form  new  states,  and  to 
mlmit  them  into  the  Union.  (Ante,  pp.  196-207.)  When  the  Ordinance  of 
1787  for  the  regulation  and  government  of  the  Northwestern  Teiiitoiy,  was 
adopted,  the  power  to  admit  new  states  was  again  assumed.  The  Convention 
for  forming  the  Constitution  was,  however,  then  sitting,  and  it  may  be  that  the 
framers  of  the  ordinance  introduced  into  that  instrument  the  stipulation  that 
the  new  states  should  be  admitted  on  an  equal  footing  with  the  old  ones,  in  the 
confidence  that  the  constitutional  power  would  be  supplied  by  the  Convention. 
At  any  rate,  tlie  provisions  of  the  ordinance,  as  well  as  those  of  the  previous 
resolves  of  Congress  on  the  same  suliject  of  the  Northwestern  Territory,  and  the 
position  of  Kentucky,  Vermont,  Maine,  and  Tennessee  (then  called  Franklin), 
imposed  upon  the  Convention  an  imperative  necessity  for  some  action  that  would 
open  the  door  of  the  Union  to  new  members. 


3G1 


GUARANTEE  OF  REPUBLICAN  GOVERNMENT. 

The  power  to  admit  was  assumed,  and  no  rule  of  voting  on  the 
(piestion  of  admission  was' referred  to.  The  probability  is,  that 
C.ongicss  anticipated  at  this  time  that  a detinite  constitutional 
power  would  be  provided  by  the  Convention  that  had  been  sum- 
moned to  revise  the  federal  system.  This  power  was  embraced  in 
the  plan  adopted  in  the  committee  of  the  whole  of  that  body,  by 
a resolve  which  declared  ‘‘that  provision  ought  to  be  made  for 'the 
admission  of  states  lawfully  arising  within  the  limits  of  the  United 
States,  whether  from  a voluntary  junction  of  government  and  ter- 
ritoiy,  or  otlierwise,  with  the  consent  of  a number  of  voices  in  the 
national  legislature  less  than  the  whole.”  In  what  mode  this  pro- 
vision was  made  will  be  seen  hereafter,  when  we  come  to  examine 
the  framework  of  the  Constitution. 

Another  of  the  new  powers  now  proposed  to  be  given  to  the 
Union  was  that  of  protecting  and  upholding  the  governments  of 
the  states.  I have  already  had  occasion  to  explain  the  relations 
of  the  Confederation  to  its  members  in  a time  of  internal  dis- 
} turbance  and  peril ; and  have  given  to  the  incapacity  of  that  gov- 
ernment to  afford  any  aid  in  such  emergencies  great  prominence 
among  the  causes  which  led  to  the  revision  of  the  federal  system.^ 
Under  that  system  the  states  had  been  so  completely  sovereio-n, 
and  so  independent  of  each  other  in  all  that  related  to  their  In- 
ternal concerns,  that  the  government  of  any  one  of  them  mio-ht 
have  been  subverted  without  the  possibility ^of  an  authorized  mid 
regulated  interference  by  the  rest.  The  constitutional  and  repub- 
lican liberty  that  had  been  established  in  these  states  after  the 
Eevolution  had  freed  them  from  the  dominion  of  England,  was 
at  that  period  a new  and  untried  experiment ; and  in  orcTer  that  we 
of  this  generation  may  be  able  to  appreciate  the  importance  of 
the  guarantee  proposed  to  be  introduced  into  the  Constitution  of 
the  United  States,  it  is  necessary  for  us  to  look  somewhat  further 
than  the  particular  circumstances  of  the  commotions  in  Uew  EnD-- 
land  that  marked  the  year  1787  as  an  era  of  especial  danger  to 
these  republican  governments.  It  is,  in  fact,  necessarv  for  us  to 
remember  the  contemporaneous  history  of  Europe,  and'  to  observe 
how  the  events  that  were  taking  place  in  the  Old  World  neces- 
sarily acted  upon  our  condition,  prospects,  and  welfare. 


^ Ante,  pp.  176-186. 


362 


• CONSTITUTIONAL  HISTORY. 

The  French  Ee volution,  consummated  in  1791  by  the  execution 
of  the  king,  was  already  begun  when  the  Constitution  of  the  United 
States  went  into  operation.  No  one  who  has  examined  the  history 
of  the  first  years  of  our  present  national  government  can  fail  to 
have  been  impressed  with  the  dangers  which  the  administration 
of  our  domestic  affairs  incurred  of  becoming  complicated  with  the 
politics  of  Europe.  As  in  all  other  countries,  so  in  America,  the 
events  and  progress  of  the  Eevolution  in  France  found  sympathy 
or  reprobation,  according  to  the  natural  tendencies,  the  previous 
associations,  and  the  political  sentiments  of  individuals.  But  in 
the  United  States  there  was  a peculiar  and  predisposing  cause  for 
the  liveliest  interest  in  the  success  of  the  principles  that  were  be- 
lieved, by  large  masses  of  the  people,  to  be  involved  in  the  French 
Eevolution.  Our  own  struggles  for  liberty,  our  bold  and  success- 
ful assertion  of  the  rights  of  man,  and  our  achievement  of  the 
means  and  opportunity  of  self-government,  had  evidently  and 
strikingly  acted  upon  France.  The  people  of  the  United  States 
were  fully  sensible  of  this ; and  transferring  to  the  French  nation 
the  debt  of  gratitude  for  the  aid  which  had  flowed  to  us  in  the 
first  instance  from  their  government  without  any  special  influence 
of  their  own,  large  numbers  of  our  people  became  warmly  enlisted 
in  the  cause  of  that  Eevolution  of  which  the  early  promise  seemed 
so  encouraging  to  the  best  hopes  of  mankind,  and  the  full  develop- 
ment of  which  first  ruined  the  interests  of  liberty,  in  the  wanton 
excesses  of  anarchy  and  national  ambition,  and  finally  crushed  them 
beneath  the  usurpations  and  necessities  of  military  despotism. 
On  the  other  hand,  the  more  cautious— who,  if  they  had  not  from 
the  first  looked  with  distrust  upon  the  whole  movement  of  the 
Eevolutionary  party  in  France,  very  soon  believed  that  it  could  re- 
sult in  no  real  benefit  to  France  or  to  the  world-tended  strongly 
and  naturally  to  the  side  of  those  governments  with  which  the 
leaders  of  the  Eevolution  had  to  contend.  In  consequence  of  this 
state  of  feeling  among  different  portions  of  the  people  of  the 
United  States,  with  reference  to  French  affairs,  and  of  the  conduct 
of  France  and  England  towards  ourselves,  the  administration  of 
Washington  had  great  difficulty  both  in  preserving  the  neutrality 
of  the  country  and  in  excluding  foreign  influence  and  interference 
in  our  domestic  affairs. 

Had  this  state  of  things,  which  followed  immediately  after  the 


GUARANTEE  OF  REPUBLICAN  GOVERNMENT.  3(;3 

inauguration  of  our  new  government,  found  us  still  under  the 
Confederation,  there  can  be  no  doubt  that  our  condition  would 
have  afforded  to  the  lievolutionaiy  i)arty  in  Fi-ance  the  means,  not 
only  of  disseminating  their  principles  among  us,  but  also  of  over- 
turning any  of  the  institutions  of  the  weaker  states  which  might 
have  stood  in  the  way  of  their  acquiring  an  influence  in  America. 
Yet  what  form  or  principle  of  government  is  there  in  the  world 
that  more  imperatively  requires  all  foreign  or  external  influence 
to  be  repelled  than  our  own  republican  system,  of  which  it  is  a 
cardinal  doctrine  that  every  institution  and  every  law  must  ex- 
press the  uncontrolled  and  spontaneous  will  of  a majority  of  the 
people  who  constitute  the  political  society  ? Other  governments 
may  be  upheld  by  the  interference  of  their  neighbors ; other  sys- 
tems may  require,  and  perhaps  rightfully  admit,  foreign  influence. 
Ours  demand  an  absolute  immunity  from  foreign  control,  and  can 
exist  only  when  the  authority  of  the  people  is  made  absolutely  free. 
That  their  authority  should  be  made  and  kept  free  to  act  upon  the 
principles  that  enable  it  to  operate  with  certainty  and  safety,  it 
requires  the  guarantee  of  a system  that  rests  upon  the  same  prin- 
ciples, is  committed  to  the  same  destiny,  is  itself  constituted  by 
American  power,  and  is  created  for  the  express  purpose  of  pre- 
serving the  republican  form,  the  theory  and  the  right  of  self- 
government. 

Such  was  the  purpose  of  the  framers  of  the  Constitution,  when, 
in  this  early  stage  of  their  deliberations,  they  determined  that  a 
republican  constitution  should  be  guaranteed  by  the  United  States 
to  each  of  the  states.'  The  object  of  this  provision  was  to  secure 
to  the  people  of  each  state  the  power  of  governing  their  own  com- 
munity, through  the  action  of  a majority,  according  to  the  fun- 
damental rules  which  they  might  prescribe  for  ascertaining  the 
public  will.  The  insurrection  in  Massachusetts,  then  just  sup- 
pressed, had  made  the  dangers  that  surround  this. theory  of  gov- 

^ As  the  resolution  was  originally  passed,  it  declared  that  “ a republican  con- 
stitution, and  its  existing  laws,  ought  to  be  guaranteed  to  each  state  by  the 
United  States.”  On  account  of  the  ambiguity  of  the  expression  “ existing  laws,” 
and  the  controversies  to  which  it  might  give  rise,  the  provision  was  subse- 
quently changed  to  a guarantee  of  “ a republican  form  of  government,”  and  of 
protection  against  “invasion”  and  “domestic  violence,”  as  it  now  stands  in 
Art.  IV.  Sect.  4 of  the  Constitution. 


304:  CONSTITUTIONAL  HISTORY.  W 

eminent  painfully  apparent.  It  had  demonstrated  the  possibility  M 
that  a minority  might  become  in  reality  the  ruling  power.  For-  1 
tunately  no  foreign  interference  had  then  intervened ; but  a very  A 
few  years  only  elapsed  before  a crisis  occurred  in  which  the  insti-  1 
tut  ions  of  the  states  would  have  been  quite  unable  to  withstand  • 
the  shocks  proceeding  from  the  French  Revolution,  if  the  govern-  I 
ment  of  the  Union  had  not  been  armed  with  the  power  of  pro-  I 

tec  ting  and  upholding  them.  | 

The  committee  also  added  another  new  feature  to  their  plan  of  | 
government,  wdiich  was  a capacity  of  being  amended.  The  Arti- 
cles of  Confederation  admitted  of  changes  only  when  they  had  j 
been  agreed  upon  in  Congress,  and  had  afterwards  been  confirmed 
by  the"" legislatures  of  all  the  states.  Indeed,  it  resulted  necessa-  . 
r'dy  from  the  nature  of  that  government  that  it  could  only  be  ; 
altered  by  the  consent  of  all  the  parties  to  it.  It  was  now  pro- 
posed and  declared  that  provision  ought  to  be  made  for  the  amend- 
ment of  the  Articles  of  Union,  whenever  it  should  seem  necessary. 
This  declaration  looked  to  the  establishment  of  some  new  method 
of  originating  improvements  in  the  system  of  government,  and  a 

new  rule  for  their  adoption.  ' 

It  wms  also  determined  that  the  members  of  the  state  govern- 
ments should  be  bound  by  oath  to  support  the  Articles  of  Union. 
The  purpose  of  this  provision  was  to  secure  the  supremacy  of  the 
national  government,  in  cases  of  collision  between  its  authority 
and  the  authority  of  the  states.  It  was  a new  feature  in  the  na-  i 
tional  system,  and  received  at  first  the  support  of  only  a bare  , 

majority  of  the  states.^  ^ , 

Finally,  it  was  provided  that  the  new  system,  after  its  appro-  ^ 
bation  by  Congress,  should  be  submitted  to  representative  assem-  , 
blies  recommended  by  the  state  legislatures,  to  be  expressly  chosen  , 
by  the  people  to  consider  and  decide  thereon.  The  question  has  ' 
often  been  discussed,  whether  this  mode  of  ratification  marks  in  | 
any  Avay  the  character  of  the  government  established  by  the  Con-^ 
stitution.  At  present  it  is  only  necessary  to  observe  that  the 
design  of  the  committee  was  to  substitute  the  authority  of  the , 

1 Massaclmsetts,  Pennsylvania,  Virginia,  Nortli  Carolina,  South  Carolina,  and 
Georgia  voted  for  it  (6);  Connecticut,  New  Jersey,  New  York,  Delaware,  and,,' 
aryl  and  voted  against  it  (5). 


BASIS  OP  THE  NEW  GOVERNMENT.  305 

peo])le  of  the  stiites  in  tliG  pljice  of  tluit  of  the  sttite  legislatures, 
for  a threefold  purpose.  First,  it  was  deemed  desirable  to  resort 
to  the  supreme  authority  of  the  people,  in  order  to  give  the  new 
system  a higher  sanction  than  could  be  given  to  it  by  the  state  gov- 
.ernments.  Secondly,  it  was  thought  expedient  to  get  rid  of  the  doc- 
trine, often  asserted  under  the  Confederation,  that  the  Union  was 
a mere  compact  or  treaty  between  independent  states,  and  that 
therefore  a breach  of  its  articles  by  any  one  state  absolved  the 
rest  from  its  obligations.  In  the  third  place,  it  was  intended,  by 
this  mode  of  ratification,  to  enable  the  people  of  a less  number  of 
the  states  than  the  whole  to  form  a new  Union,  if  all  should  not 
be  willing  to  adopt  the  new  system.'  The  votes  of  the  states  in 
committee,  upon  this  new  mode  of  ratification,  show  that  on  one 
side  were  ranged  the  states  that  were  aiming  to  change  the  prin- 
ciple of  the  government,  and  on  the  other  the  states  that  sought 
to  preserve  the  principle  of  the  Confederation.’' 

These,  together  with  a provision  that  the  authority  of  the  old 
Congress  should  be  continued  to  a given  day  after  the  changes 
should  have  been  adopted,  and  that  their  engagements  should  be 
completed  by  the  new  government,  w-ere  the  great  features  of  the 
system  prepared  by  the*  committee  of  the  whole,  and  reported  to 
the  Convention  on  the  thirteenth  of  June.’* 


’ See  Madison,  Elliot,  V.  157,  158,  183. 

’ Massachusetts,  Pennsylvania,  Virginia,  North  Carolina,  South  Carolina, 
Georgia,  ay,  6 ; Connecticut,  New  York,  New  Jersey,  no,  3 ; Delaware,  Mary- 
land, divided.  See  further  on  the  subject  of  Ratification,”  post,  Index.’ 

^ The  report  was  in  the  following  words  : 

“ 1.  Resolved,  That  it  is  the  opinion  of  this  committee  that  a national  govern- 
ment ought  to  be  established,  consisting  of  a supreme  legislative,  executive  and 
judiciary.  ’ 

‘‘2.  Resolved,  That  the  national  legislature  ought  to  consist  of  two  branches. 

“ 3.  Resolved,  That  the  members  of  the  first  branch  of  the  national  legislature 
ought  to  be  dected  by  the  people  of  the  several  states  for  the  term  of  three 
years ; to  receive  fixed  stipends  by  which  they  may  be  compensated  for  the  devo- 
tion of  their  time  to  the  public  service,  to  be  paid  out  of  the  national  treasury 
to  be  ineligible  to  any  office  established  by  a particular  state,  or  under  the 
authority  of  the  United  States  (except  those  peculiarly  belonging  to  the  func- 
tions of  the  first  branch),  during  the  term  of  service,  and  under  the  national 
government,  for  the  space  of  one  year  after  its  expiration. 

4.  Resolved,  That  the  members  of  the  second  branch  of  the  national j£.gi^' 


3G6 


CONSTITUTIONAL  HISTORY. 

laturc  ought  to  be  chosen  by  the  individual  legislatures ; to  be  of  the  age  of 
thirty  years,  at  least;  to  hold  their  offices  for  a term  sufficient  to  insure  their 
independence,  namely,  seven  years;  to  receive  fixed  stipends,  by  which  they 
may  be  compensated  for  the  devotion  of  their  time  to  the  public  service,  to  be 
paid  out  of  the  national  treasury ; to  be  ineligible  to  any  office  established  by  a 
particular  state,  or  uiicler  the  authority  of  the  United  States  (except  those  pecul- 
iarly belonging  to  the  functions  of  the  second  branch),  during  the  term  of  sev- 
vice,  and  under  the  national  government,  for  the  space  of  one  year  after  its 
expiration, 

“ 5.  Resolved,  That  each  branch  ought  to  possess  the  right  of  originating  acts. 
“6.  Resolved,  That  the  national  legislature  ought  to  be  empowered  to  enjoy 
the  legislative  rights  vested  in  Congress  by  the  Confederation;  and,  moreover, 
to  legrslate  in  all  cases  to  which  the  separate  states  are  incompetent,  or  in  which 
the  irarmony  of  the  United  States  may  be  interrupted  by  the  exercise  of  individ- 
ual legislation ; to  negative  all  laws  passed  liy  the  several  states  contravening, 
in  the  opinion  of  the  national  legislature,  the  Articles  of  Union,  or  any  treaties 

subsisting  under  the  authorit}’^  of  the  Union, 

“ 7.  Resolved,  That  the  right  of  suffrage  in  the  first  branch  of  the  national 
legislature  ought  not  to  be  according  to  the  rule  established  in  the  Articles  of 
Confederation,  but  according  to  some  equitable  ratio  of  representation ; namely, 
in  proportion  to  the  whole  number  of  white  and  other  free  citizens  and  inhabi- 
tants, of  every  age,  sex,  and  condition,  including  those  bound  to  servitude  for  a 
term  of  years,  and  three  fifths  of  all  other  persons  not  comprehended  in  the  fore- 
going description,  except  Indians  not  paying  taxes  in  each  state. 

“"s.  Resolved,  That  the  right  of  suffrage  in  the  second  branch  of  the  national 
legislature  ought  to  be  according  to  the  rule  established  for  the  first. 

“9.  Resolved,  That  a national  executive  be  instituted,  to  consist  of  a single 
person,  to  be  chosen  by  the  national  legislature,  for  the  term  of  seven  years, 
with  power  to  carry  into  execution  the  national  laws,  to  appoint  to  offices  in 
cases  not  otherwise  provided  for,  to  be  ineligible  a second  time,  and  to  be  remov- 
able on  impeachment  and  conviction  of  malpractice  or  neglect  of  duty  ; to  receive 
a fixed  stipend,  by  which  he  may  be  compensated  for  the  devotion  of  his  time 
to  the  public  service,  to  be  paid  out  of  the  national  treasuiy. 

“10.  Resolved,l^\\oi  the  national  executive  shall  have  a right  to  negative  any 
legislative  act,  which  shall  not  be  afterwards  passed  unless  by  two  thirds  of 

eadi  branch  of  the  national  legislature.  ^ 

“ 11.  Resolved,  That  a national  judiciary  be  established,  to  consist  of  one 
supreme  tribunal,  the  judges  of  which  shall  be  appointed  by  the  second  branc  i 
of  the  national  legislature,  to  hold  their  offices  during  good  behavior,  and 
receive  punctually,  at  stated  times,  a fixed  compensation  for  their  services,  in 
which  no  increase  or  diminution  shall  be  made  so  as  to  affect  the-persons  actu- 
allv  in  office  at  the  time  of  such  increase  or  diminution.  ^ . 

12.  Resolved,  That  the  national  legislature  be  empowered  to  appoint  inferioi 

trilninals.  . , ,,  , , 

“ 13.  Resolved,  That  the  jurisdiction  of  the  national  judiciary  shall  extcnc 


3G7 


OUTLINE  OF  THE  CONSTITUTION. 

to  all  oases  which  respect  the  collection  of  the  natioiml  rovenne,  impeachments 
ol  any  natioiml  officers,  ami  questions  which  involve  the  national  peace  ami 

“14.  nemhed.  That  provision  ought  to  be  made  for  the  admission  of  states 
lawfully  arising  without  the  limits  of  the  Unitc.l  State.s,  whether  from  a volun- 
tary junction  of  government  ami  territory,  or  otherwise,  with  the  consent  of  a 
number  ot  voices  in  the  national  legislature  less  than  the  whole. 

“ 15.  Itc'iohed,  That  provision  ought  to  be  made  for  the  continuance  of  Con- 
gress, and  their  authorities  and  privileges,  until  a given  day  after  the  reform 

ot  the  Articles  of  Union  shall  be  adopted,  and  for  the  completion  of  all  their 
cngagemcMits. 

“ 1C.  llcmlml,  That  a republican  constitution,  and  its  existing  laws,  ought  to 
be  guaniiiteecl  to  eacli  state  by  the  United  States. 

“17.  Resohed,  provision  ought  to  be  made  for  the  amendment  of  the 
Articles  of  Union,  whensoever  it  shall  seem  necessary. 

“18.  Resolved,  That  the  legislative,  executive,  and  judiciaiy  powers  within 
the  several  states  ought  to  be  bound  by  oath  to  support  the  Articles  of  Union 

19.  Resolved,  That  the  amendments  which  shall  be  offered  to  the  Confeder- 
ation ly  the  Convention  ought,  at  a proper  time  or  times  after  the  approbation 
of  Congiess,  to  be  submitted  to  an  assembly  or  assemblies  of  representatives 
lecommended  by  the  several  legislatures,  to  be  expressly  chosen  by  the  people 
to  consider  and  decide  thereon.”  ^ ^ 


CHAPTEE  XXI. 

Issue  between  the  Virginia  and  the  New  Jersey  Plans.— 
Hamilton’s  Propositions. — Madison’s  View  of  the  New  Jer- 
SEY  Plan. 

The  nature  of  the  plan  of  government  thus  proposed  called 
generally  in  the  proceedings  of  the  Convention  the  Virginia  plan 
mav  be  perceived  from  the  descriptions  that  have  now  been  given 
of  the  design  and  scope  of  its  principal  features,  and  of  the  circum- 
stances out  of  which  they  arose.  It  purported  to  be  a supreme 
and  a national  government ; and  we  are  now  to  inquire  in  what 

sense  and  to  Avhat  extent  it  was  so. 

Its  powers,  as  we  have  seen,  were  to  be  distributed  among  the 
three  departments  of  a legislative,  an  executive,  and  a judiciary. 
Its  leo-islative  body  was  to  consist  of  two  branches,  one  of  whio  i 
was  to  be  chosen  directly  by  the  people  of  the  states,  the  other  by 
the  state  legislatures ; but  in  both  the  people  of  the  states  were 
to  be  represented  in  proportion  to  their  numbers. 

Its  legislative  powers  were  to  embrace  certain  objects  to  which 
the  leo-is’Itive  powers  ofthe  separate  states  might  be  incompetent, 
or  where  their  exercise  might  be  injurious  to  the  national  inter- 
ests • ' and  it  was  moreover  to  have  a certain  restraining  authority 
over  the  legislation  of  the  states.  This  plan  necessarily  suppos^ 
that  the  residue  of  the  sovereignty  and  legislative  power  of 
states  would  remain  in  them  after  these  objects  had  been  provided 
for-  and  it  therefore  contemplated  a system  of  government  m 
which  the  individual  citizen  might  be  acted  upon  by  two  separate 
and  distinct  legislative  authorities.  But  by  providing  that  t e 
leo-islative  power  of  the  national  government  should  be  deriveci 
from  the  people  inhabiting  the  several  states,  and  by  creating  an 


' The  regulation  of  commerce  was  not,  any  more  tlian  other  specific  powers, 
otlierwise  p'rovided  for  than  by  these  general  descriptions. 


NATIONAL  AND  STATE  SOVEUEIGNTY.  3f]() 

executive  jind  a judiciary  witli  an  authority  commensurate  with 
that  of  tlic  leg’islatui'e,  it  sought  to  make,  and  did  tlieoretically 
make,  the  national  government,  in  its  proper  sphere,  supreme  over 
the  governments  of  the  states. 

With  respect  to  the  element  of  stability,  as  depending  on  the 
length  of  the  tenure  of  office,  this  sj^stem  was  far  in  advance  of 
any  of  the  republican  governments  then  existing  in  America ; for 
it  contemplated  that  the  members  of  one  branch  of  the  legislature 
should  be  elected  for  three,  and  those  of  the  other  branch,  and  the 
executive,  for  seven  years. 

If  we  compare  it  Avith  the  Confederation,  which  it  Avas  designed 
to  supersede,  AAm  find  greatly  enlarged  powers,  somewhat  vaguely 
defined  ; the  addition  of  distinct  and  regular  departments,  accu- 
rately traced ; and  a totally  different  basis  for  the  authority  and 
origin  of  the  gOAmrnment  itself. 

Such  Avas  the  nature  of  the  plan  of  government  proposed  by 
a majority  of  the  states  in  convention,  for  the  consideration  of 
all.  It  had  to  encounter,  in  the  first  place,  the  want  of  an  ex- 
press authority  in  the  convention  to  propose  any  change  in  the 
fundamental  principle  of  the  government.  The  long  existence  of 
the  distinctions  betAveen  the  different  states,  the  settled  habit  of 
the  people  of  the  states  to  act  only  in  their  separate  capacities, 
their  adherence  to  state  interests,  and  their  strong  prejudices 
against  all  external  power,  had  prevented  them  from^contemplat- 
ing  a gOAmrnment  founded  on  the  principle  of  a national  unity 
among  the  populations  of  their  different  communities.  Hence  it 
IS  not  surprising  that  men,  Avho  came  to  the  Convention  Avithout 
express  poAvers  AAdiich  they  could  consider  as  authority  for  the  in- 
troduction of  .so  noA^el  a principle,  should  have  been  unwilling  to 
agree  to  the  formation  of  a government  that  Avas  to  iiiAmlve  the 
surrender  of  a large  portion  of  the  sovereignty  of  each  state. 
They  felt  a real  apprehension  lest  their  separate' states  should  be 
lost  in  the  comprehensive  national  poAver  Avhich  seemed  to  be  fore- 
shadoAved  by  the  plans  at  Avhich  others  Avere  aiming.  It  seemed 
to  them  that  the  consequence,  the  power,  and  even  the  existence, 
of  their  separate  political  corporations,  Avere  about  to  be  absorbed 
into  the  nation. 

_ In  the  second  place,  the  mode  of  reconciling  the  co-ordinate 
existence^of  a national  and  a state  sorereignty  had  undergone  no 


CONSTITUTIONAL  HISTORY. 


370 


public  discussion.  At  the  same  time  almost  all  the  evils,  the  in- 
conveniences, and  the  dangers  which  the  country  had  encountered 
since  the  peace  of  1783  had  sprung  from  the  impossibility  of 
uniting  the  action  of  the  states  upon  measures  of  general  concern. 
For  this  reason  there  were  men  in  the  Convention  who  at  one 
time  doubted  the  utility  of  preserving  the  states,  and  who  natu- 
rally considered  that  the  only  mode  in  which  a durable  and  suffi- 
cient government  could  be  established  was  to  fuse  all  the  elements 
of  political  power  into  a single  mass.  To  those  Avho  had  this 
feeling  the  Virginia  plan  was  as  little  acceptable  as  it  was,  for 
the  opposite  reason,  to  others. 

It  was,  however,  from  the  party  opposed  to  any  departure. 


from  the  principle  of  the  Confederation  that  the  first  and  the 
chief  opposition  came.  The  delegations  of  Connecticut,  New  York 
(with  the  exception  of  Hamilton),  New  Jersey,  and  Delaware,  and 
one  prominent  member  from  Maryland  — Luther  Martin  pre- 
ferred to  add  a few  new  powers  to  the  existing  system,  rather 
than  to  substitute  a national  government.  They  were  determined 
not  to  surrender  the  present  equality  of  suffrage  in  Congress ; and 
accordingly  the  members  from  the  state  of  New  Jersey  brought 
forward  a plan  of  a purely  ^‘federal  ’ character. 

This  plan  proposed  that  the  Articles  of  Confederation  should 
be  so  revised  and  enlarged  as  to  give  to  Congress  certain  addi- 
tional powers,  including  a power  to  levy  duties  for  purposes  of 
revenue  and  the  regulation  of  commerce.  But  it  left  the  consti- 
tution of  Congress  as  it  was  under  the  Confederation,  and  left  also 
the  old  mode  of  discharging  the  national  expenses  by  means  of 
requisitions  on  the  states,  changing  only  the  rule  of  proportion 
from  the  basis  of  real  property  to  that  of  free  population.  It  con- 
templated an  executive,  to  be  elected  by  Congress,  and  a supreme 
judiciary  to  be  appointed  by  the  executive ; leaving  to  the  judi- 
ciaries of  the  states  original  cognizance  of  all  cases  arising  under 
the  laws  of  the  Union,  and  confining  the  national  judiciary  to  an 
appellate  jurisdiction,  except  in  the  cases  of  impeachments  of  na- 
tional officers.  It  proposed  to  secure  obedience  to  the  acts  and 
regulations  of  Congress  by  making  them  the  supreme  law  of  the 


1 This,  togetlier  with  the  Virginia  plan,  which  was  recommitted  along  with 
it,  was  referred  to  a second  committee  of  the  whole,  June  15th. 


HAMILTON’S  SUPPOSED  OPINIONS.  37^ 

states,  and  by  aiitliorizing  the  executive  to  employ  the  power  of 
the  ooiifedofiited  states  against  any  state  or  body  of  men  who 
iniglit  oppose  or  prevent  tlieir  being  carried  into  execution. 

llie  mover  of  this  system'  founded  his  opposition  to  tlie  plan 
framed  by  the  committee  of  the  whole  chiefly  upon  the  want  of 
power  in  the  Convention  to  propose  a change  in  the  principle  of 
the  existing  government.  He  argued,  with  much  acuteness,  that 
there  was  eitlier  a present  confederacy  of  the  states,  or  there 
was  not;  that  if  there  was,  it  was  one  founded  on  the  equal  sov- 
ereignties of  the  states,  and  that  it  could  be  changed  only  by  the 
consent  of  all;  that  as  some  of  the  states  would  not  consent  to 
the  change  proposed,  it  was  necessary  to  adhere  to  the  system  of 
representation  by  states ; and  that  a system  of  representation  of 
the  people  of  the  states  was  inconsistent  with  the  preservation  of 
tlie  state  sovereignties.  The  answer  made  to  this  objection  was, 
that  although  tlie  states,  in  appointing  their  delegates  to  the  Con- 
vention, had  given  them  no  express  authority  to  change  the  prin- 
ciple of  the  existing  constitution,  yet  that  the  Convention  had  been 
assembled  at  a great  crisis  in  the  affairs  of  the  Union,  as  an  exper- . 
iment,  to  remedy  the  evils  under  which  the  country  had  long  suf- 
fered frpm  the  defects  of  its  general  government;  that  whatever 
was  necessary  to  the  safety  of  the  republic  must,  under  such  cir- 
cumstances, be  considered  as  within  the  implied  powers  of  the 
Convention,  especially  as  it  was  proposed  to  do  nothing  more  than 
to  recommend  the  changes  which  might  be  found  necessary;  and 
that  although  all  might  not  assent  to  the  changes  that  would  be 
proposed,  the  dissentient  states  could  not  require  the  others  to 
remain  under  a system  that  had  completely  failed,  when  they 
could  form  a new  confederacy  upon  wiser  and  better  principles." 

It  was  at  this  point  that  Hamilton  interposed,  with  the  sugges- 
tion of  views  and  opinions  that  have  sometimes  subjected  him,  im- 
justlj , to  the  charge  of  anti-republican  and  monarchical  tendencies 
and  designs.  These  views  and  opinions  should  be  carefully  con- 
sidered by  the  reader,  not  only  in  justice  to  this  great  statesman, 
but  because  they  had  much  influence,  in  an  indirect  manner  in 


^ William  Patterson  of  New 
2 See  the  remarks  of  Wilson 
Elliot,  V.  195-198. 


J ersey. 

, Pinckney,  and  Randolph,  as  given  in  Madison, 


372  CONSTITUTIONAL  HISTORY. 

procUicing  the  form  and  tone  which  the  Constitution  finally  re- 
ceived. 

It  should  be  recollected,  in  making  this  examination,  that,  so 
far  as  there  was  at  this  time  a distinct  issue  before  the  Convention, 
it  was  presented  by  the  New  Jersey  plan  of  a system  that  would 
leave  the  sovereignties  of  the  states  almost  wholly  undiminished, 
on  the  one  hand,'  and  on  the  other  by  the  Virginia  plan  of  a par- 
tial, but  as  yet  undefined,  sun-ender  of  powers  to  a general  govern- 
ment. The ' construction  of  this  proposed  government,  and  the 
powers  that  it  ought  to  possess,  were  the  points  which  Hamilton 
now  dealt  with,  in  the  first  address  which  he  made  to  the  com- 
mittee. 

He  has  left  it  on  record  that  tlie  views  which  he  announced 
on  this  occasion  were  rested  upon  the  three  following  positions  : 
1.  That  the  political  principles  of  the  people  of  this  country  would 
endure  nothing  but  a republican  government.  2.  That,  m the 
actual  situation  of  the  country,  it  was  of  itself  right  and  proper 
that  the  republican  theory  should  have  a full  and  fair  trial.  3. 
That  to  such  a trial  it  was  essential  that  the  government  should 
be  so  constructed  as  to  give  it  all  the  energy  and  stability  recon- 
cilable with  the  principles  of  that  republican  theory.’  The  opin- 
ions advanced  by  Hamilton  at  the  stage  of  the  proceedings  which 
we  are  now  examining  must  always  be  considered  with  reference 
to  the  principles  which  guided  him,  in  order  that  a right  estimate 
may  be  formed  of  their  influence  on  the  final  result  of  the  issue 

then  pending. 

After  disposing  of  the  objection  that  the  Convention  had  no 
power  to  propose  a plan  of  government  differing  from  the  princi- 
ple of  the  Confederation,  he  proceeded  to  say  that  there  were 
three  lines  of  conduct  before  them ; first,  to  make  a league  offen- 
sive and  defensive  between  the  states,  treaties  of  commerce,  and 
an  apportionment  of  the  public  debt ; secondly,  to  amend  the 
present  Confederation  bv  adding  such  powers  as  the  public  mind 
seemed  ready  to  grant ; thirdly,  to  form  a new  government,  which 
should  pervade  the  whole,  with  decisive  powers  and  a complete 
sovereignty.  The  practicability  of  the  last  course,  and  the  mode 

> Sec  Ills  letter  of  September  16tli,  1808,  addressed  to  Timotliy  Pickering; 
first  pulilislied  in  Niles’s  Register,  November  7tli,  1812. 


HAMILTON’S  EXPLANATION  OF  IIIS  VIEWS.  373 

in  which  the  object  should  be  accomplished,  were  the  important 
and  the  oidy  real  questions  before  them.  ]^ut  the  solution  of 
those  questions  involved  an  inquiiy  into  the  principles  of  civil 
obedience,  which  are  the  great  and  essential  supports  of  all  gov- 
ernment. ^ 

The  first  of  these  principles,  he  said,  is  an  active  and  constant 
interest  in  the  support  of  a government.  This  principle  did  not 
then  exist  in  the  states  in  favor  of  the  general  government.  They 
constantly  pursued  their  own  particular  interests,  which  were  ad- 
verse to  those  of  the  whole.  The  second  principle  is  a conviction 
of  the  utility  and  necessity  of  a government.  As  the  general 
government  might  be  dissolved  and  yet  the  order  of  society  would 
continue — so  that  maii}^  of  the  purposes  of  government  would 
still  be  attainable,  to  a considerable  degree,  within  the  states  them- 
selves a conviction  of  the  utility  or  the  necessity  of  a general 
government  could  not  at  that  time  be  considered  as  an  active  prin- 
ciple among  the  people  of  the  states.  The  third  principle  is  an 
habitual  sense  of  obligation ; and  here  the  whole  force  of  the  tie 
n as  on  the  side  of  state  government.  Its  sovereignty  was  imme- 
diately before  the  eyes  of  the  people ; its  protection  they  immedi- 
ately enjoyed ; by  its  hand  private  justice  was  administered.  In 
the  existing  state  of  things,  the  central  government  was  known 
only  by  its  unwelcome  demands  of  money  or  service. 

The  fourth  principle  on  which  government  must  rely  is  force ; 
by  Avhich  he  meant  both  the  coercion  of  laws  and  the  coercion  of 
arms.  But  as  to  the  general  government,  the  coercion  of  laws 
did  not  exist ; and  to  employ  the  force  of  arms  on  the  states  would 
amount  to  a war  between  the  parties  to  the  confederacy.  The  ^ 
fifth  principle  was  influence;  by  which  he  did  not  mean  corrup- 
tion, but  a dispensation  of  those  regular  honors  and  just  emolu- 
ments which  produce  an  attachment  to  government.  Almost  the 
v hole  weight  of  these  was  then  on  the  side  of  the  states,  and 
must  remain  so  in  any  mere  confederacy,  rendering  it  in  its  ver}^  ’ 
nature  feeble  and  precarious. 

The  lessons  afforded  by  experience  led  to  the  evident  conclu- 
sion that  all  federal  governments  were  weak  and  distracted.  They 
were  so  because  the  strong  principles  which  he  had  enumerated 
operated  on  the  side  of  the  constituent  members  of  the  confed- 
eracy, and  against  the  central  authority.  In  order,  therefore,  to 


CONSTITUTIONAL  HISTORY. 


374 

establish  a general  and  national  government,  with  any  hope  of  its 
duration,  they  must  avail  themselves  of  these  principles.  They 
^ must  interest  the  wants  of  men  in  its  support;  they  must  make  it 
useful  and  necessary ; and  they  must  give  it  the  means  of  coer- 
cion. For  these  purposes  it  would  be  necessary  to  make  it  com- 
pletely sovereign. 

The  New  Jersey  plan  certainly  would  not  produce  this  effect. 
It  merely  granted  the  regulation  of  trade  and  a more  effectual 
collection  of  the  revenue,  and  some  partial  duties,  which,  at  five  or 
ten  per  cent.,  would  perhaps  only  amount  to  a fund  to  discharge 
the  debt  of  the  corporation.  But  there  were  a variety  of  objects 
which  must  necessarily  engage  the  attention  of  a national  govern- 
ment. It  would  have  to  protect  our  rights  against  Canada  on  the 
north,  against  Spain  on  the  south,  and  the  western  frontier  against 
the  savages.  It  would  have  to  adopt  necessary  plans  for  the  set- 
tlement of  the  frontiers,  and  to  institute  the  mode  in  which  settle- 
ments and  good  governments  were  to  be  made.  According  to  the 
New  Jersey  plan,  the  expense  of  supporting  and  regulating  these 
important  matters  could  only  be  defrayed  by  requisitions.  This 
mode  had  already  proved,  and  would  always  be  found,  ineffectual. 
The  national  revenue  must  be  drawn  from  commerce— from  im- 
posts, taxes  on  specific  articles,  and  even  from  exports,  which,  not- 
withstanding the  common  opinion,  he  held  to  be  fit  objects  of 
moderate  taxation. 

The  radical  objections  to  the  New  Jersey  plan  he  held  to  be 
its  equality  of  suffrage  as  between  the  states,  its  incapacity  to 
raise  forces  or  to  levy  taxes,  and  the  organization  of  Congress, 
which  it  proposed  to  leave  unchanged.  On  the  other  hand,  the 
great  extent  of  the  country  to  be  governed,  and  the  difficulty  of 
drawing  a suitable  representation  from  such  distances,  led  him  to 
regard  the  Virginia  plan  with  doubt  and  hesitation.  At  the  same 
time  he  declared  that  the  system  must  be  a representative  and 
republican  government.  But  representation  alone,  without  the 
element  of  a permanent  tenure  of  office  in  some  part  of  the  sys- 
tem, would  not,  as  he  believed,  answer  the  purpose.  For,  as  soci- 
ety naturally  falls  into  the  political  divisions  of  the  few  and  the 
many,  or  the  majority  and  the  minority,  some  part  of  every  good 
representative  government  must  be  so  constituted  as  to  furnish  a 
check  to  the  mere  democratic  element.  The  Virginia  plan,  which 


n A I LT  O N ’ S P L A N.  375 

])ropose(l  tliat  both  branches  of  the  national  legislature  should  be 
chosen  by  tlio  ])eople  of  the  states,  and  that  the  executive  should 
be  appointed  by  the  legislature,  presented  a democratic  Assembly 
to  be  checked  by  a democratic  Senate,  and  both  of  them  by  a 
democratic  cliief  magistrate.  To  give  a Senate  or  an  executive 
thus  chosen  an  otlicial  term  a few  years  longer  than  that  of  the 
members  of  the  Assembly  would  not  be  sufficient  to  remove  them 
from  the  violence  and  turbulence  of  the  popular  passions. 

For  these  reasons  they  must  go  as  far,  in  order  to  attain  sta- 
bility and  permanency,  as  republican  principles  would  admit.  He  j 
would,  therefore,  have  the  Senate  and  the  executive  hold  their' 
offices  during  good  behavior.  Such  a system  would  be  strictly 
republican  so  long  as  these  offices  remained  elective  and  the  in-  ' 
cumbents  were  subject  to  impeachment.  Thp  tprm 
could  not  apply  to  such  a sj^stem,  for  it  marks  neither  the  degree 
nor  the  duration  of  power.  And  in  order  to  obviate  the  danger 
of  tumults  attending  the  election  of  an  executive  who  should  hold 
his  office  during  good  behavior,  he  proposed  that  the  election 
should  be  made  by  a body  of  electors,  to  be  chosen  bv  the  people, 
or  by  the  legislatures  of  the  states.  The  Assembly  he  proposed 
to  have  chosen  by  the  people  of  the  states  for  three  years.  The 
legislative  i^oioers  of  the  general  government  he  desired  to  have 
extended  to  all  subjects ; at  the  same  time  he  did  not  contemplate 
the  total  abolition  of  the  state  governments,  but  considered  them 
essential,  both  as  subordinate  agents  of  the  general  government 
and  as  the  administrators  of  private  justice  among  their  own  cit- 
izens.’ 

His  conclusions  were,  first,  that  it  was  impossible  to  secure  the 
Union  by  any  modification  of  a federal  government ; secondly, 
that  a league,  offensive  and  defensive,  was  full  of  certain  evils  and 
greater  dangers ; thirdly,  that  to  establish  a general  government 
would  be  very  difficult,  if  not  impracticable,  and  liable  to  various 
objections.  What,  then,  was  to  be  done  ? He  answered  that  they 
must  balance  the  inconveniences  and  the  dangers,  and  choose  that 
system  which  seemed  to  have  the  fewest  objections. ' 

The  plan  which  Hamilton  then  read  to  the  Convention,  the 
principal  features  of  which  have  thus  been  stated,  was  designed  to 


1 See  the  note  at  the  end  of  this  chapter. 


376  CONSTITUTIONAL  HISTORY. 

explain  his  views,  but  was  not  intended  to  be  offered  as  a substi- 
tute for  either  of  the  two  others  then  under  consideration.  The 
issue  accordingly  remained  unchanged ; and  that  issue  lay  between 
the  Virginia  and  the  New  Jersey  plans,  or  between  a system  of 
ecpial  representation  by  states  and  a system  of  proportionate  rep- 
resentation of  the  people  of  the  states.  Besides  this  radical  dif- 
ference, the  Virginia  7)lan  contemplated  two  houses,  while  the 
New  Jersey  plan  proposed  to  retain  the  existing  system  of  a sin- 
gle body. 

But  in  order  that  a sound  judgment  may  be  formed  of  the  cor- 
rectness of  Hamilton’s  opinions,  and  of  the  useful  influence  which 
they  exerted,  it  must  be  remembered  that  there  was  an  inconsist- 
ency in  the  Virginia  plan  which  he  was  then  aiming  to  exhibit. 
That  plan  was  a purely  national  system  ; it  drew  both  branches 
of  the  national  legislature  from  the  people  of  the  states  in  propor- 
tion to  their  numbers,  and  merely  interposed  the  legislatures  of 
the  states  as  the  electors  of  so  many  senators  as  the  state  might 
be  entitled  to  have  according  to  the  ratio  of  representation.  Its 
inconsistency  lay  in  the  fact  that,  while  it  would  have  created  a 
government  in  which  the  proportionate  principle  of  representation 
would  have  obtained  in  both  houses,  making  a purely  national 
government,  in  which'the  states,  as  equal  political  corporations, 
could  have  exercised  no  direct  control  over  its  legislation,  it  left 
the  separate  political  sovereignties  of  the  states  almost  wholly  un- 
impaired, taking  from  them  jurisdiction  over  such  subjects  only 
as  seemed  to  require  national  legislation.  The  operation  of  such 
a system  must  necessarily  have  involved  perpetual  conflicts  be- 
tween national  and  state  power ; for  the  states,  possessed  of  a 
large  part  of  their  original  sovereignties,  and  yet  unable  to  exert 
an  equal  control  in  either  branch  of  Congress,  would  have  been 
constantly  tempted  and  obliged  to  exert  the  indirect  power  of 
their  separate  legislation  against  the  direct  and  democratic  force 
of  a majority  of  the  people  of  the  United  States.  To  such  a sys- 
tem the  objection  urged  by  Hamilton,  that  it  presented  a demo- 
cratic House  checked  by  a democratic  Senate,  was  strikingly  ap- 
plicable. This  objection,  it  is  true,  was  not  presented  by  him  as 
a reason  for  admitting  the  states  to  a direct  and  equal  representa- 
tion in  the  government ; he  employed  it  to  enforce  the  expediency 
of  giving  to  the  Senate  a different  basis  from  that  of  the  House, 


HAMILTON’S  GREAT  AIM.  377 

and  one  further  removed  fi*om  popular  influences.  Jhit  when,  at 
a subsequent  period,  the  first  great  compromise  of  the  Constitu- 
tion that  between  a purely  national  and  a purely  federal  system 
—took  place  by  the  admission  of  the  states  to  an  equal  represen- 
tation in  tlie  benate,  the  force  of  Hamilton’s  reasoning  was  felt, 
and  the  necessity  for  a check  as  between  the  two  houses,  founded 
on  a difference  of  origin,  which  he  had  so  strenuously  maintained, 
both  facilitated  and  hastened  the  concession  to  the  demands  of 
the  smaller  states.  > 

At  present  Hamilton’s  object,  in  the  discussions  which  we  are 
now  considering,  w^as  to  show^  that,  if  the  government  wms  to  be 
puiely  national  as  \vas  the  theory  of  the  Virginia  plan,  and  as 
he  undoubtedly  preferred — it  must  be  consistent  wdth  that  theory 
and  with  the  situation  in  wdiich  its  adoption  w^ould  leave  the 
country.  It  must  introduce  through  the  Senate  a real  check  upon 
the  democratic  power  that  would  act  through  the  House,  by  a dif- 
ferent mode  of  election  and  a permanent  tenure  of  office ; and  in 
order  that  the  states  might  not  be  in  a situation  to  resist  the 
measures  of  a government  designed  to  be  national  and  supreme, 

that  government  must  possess  complete  and  universal  legislative 
powxr. 

Surely  it  can  be  no  impeachment  of  the  wisdom  or  the  states- 
manship of  this  great  man  that,  at  a time  when  a large  majority 
of  the  Convention  were  seeking  to  establish  a purely  national  sys- 
tem, founded  on  a proportionate  representation  of  the  people  of 
the  states,  he  should  have  pointed  out  the  inconsistencies  of  such 
a plan,  and  should  have  endeavored  to  bring  it  into  a nearer  con- 
formity with  the  theory  which  so  many  of  the  members  and  so 
many  of  the  states  had  determined  to  adopt.  It  seems  rather 
to  be  a proof  of  the  deep  sagacity  wduch  had  ahvays  marked  his 
opinions  and  his  conduct  that  he  should  have  foreseen  the  inevita- 
ble collisions  between  the  powers  of  a national  government  thus 
constituted  and  the  powers  of  the  states.  The  whole  experience 
of  the  past  had  taught  him  to  anticipate  such  conflicts,  and  the 
theory  of  a purely  national  government,  wffien  applied  by  the  ar- 
rangement now  proposed,  rendered  it  certain  that  these  conflicts 
must  continue  and  increase.  That  theory  could  only  be  put  in 
practice  by  transferring  the  wdiole  legislative  powers  of  the  people 
of  the  states  to  the  national  government.  This  he  would  have 


378  CONSTITUTIONAL  HISTORY. 

preferred;  and  in  tins,  looking  from  the  point  of  view  at  which 
he  then  stood,  and  considering  the  actual  position  of  the  subject, 
he  was  undoubtedly  right.' 

For  it  is  not  to  be  forgotten  that,  after  the  votes  which  had 
been  taken,  and  after  the  position  assumed  by  the  states  opposed 
to  anything  but  a federal  plan,  the  choice  seemed  to  lie  between 
a purely  national  and  a purely  federal  system ; that  the  indica- 
tions then  were  that  the  Virginia  plan  would  be  adopted;  and 
that  we  owm  the  present  compound  character  of  the  Constitution, 
as  a government  partly  national  and  partly  federal,  not  to  the 
mere  theories  proposed  on  either  side,  but  to  the  fortunate  results 
of  a wise  compromise,  made  necessary  by  the  collision  between  the 
opposite  purposes  and  desires  of  different  classes  of  the  states. 

At  the  time  when  Hamilton  laid  his  views  before  the  Conven- 
tion there  were  two  parties  in  that  body,  wdiich  were  coming 
gradually  to  a struggle,  not  yet  openly  avowed,  beUveen  the 
larger  and  the  smaller  states,  on  the  fundamental  principle  of  the 
government.  The  principal  question  at  stake  wns  whether  there 
should  be  any  national  popular  representation  at  all.  While  the 
Virginia  plan  carried  a popular  representation  into  both  branches 
of  the  legislature,  the  Hew  Jersey  plan  excluded  it,  and  confined 
the  system  to  a representation  of  states  in  a single  body.  The 
larger  and  more  populous  states  adhered  to  the  former  of  these 
two  systems,  because  it  involved  the  only  principle  upon  which 
they  believed  they  could  form  a new  union,  or  enter  into  new  re- 
lations with  the  smaller  members  of  the  Confederacy ; wdiile,  on 
the  other  hand,  the  smaller  members  felt  that  self-preservation 
was  for  them  involved  in  adhering  to  the  old  principle  of  the  Con- 
federation. Hotwithstanding  the  defects  and  imperfections  of 
the  Virginia  plan,  it  was  deemed  necessary  by  the  majority  of  the 
Convention  to  insist  upon  it,  until  the  principle  of  popular  repre- 
sentation should  be  conceded  by  all  as  proper  to  exist  in  some 
part  of  the  government ; for  an  admission  that  it  was  theoretically 
incorrect  in  its  application  to  either  branch  of  the  proposed  legis- 
lature would  have  applied  equally  to  the  other  branch ; and  the 
admission  that  would  have  been  involved  in  the  acceptance  of 
Hamilton’s  propositions,  namely,  that  in  a purely  national  system 


See  the  note  at  the  end  of  this  chapter. 


MADISON’S  VIEWS. 


o < 


Hierc  must  he  a Senate  permanently  in  office,  and  tliat  the  legisla- 
tive powers  of  the  states  must  he  mainly  surrendered,  would  have 
tended  only  to  conlirm  the  ojiposition  and  to  swell  the  numbers  of 
the  minority,  d'he  contest  went  on,  therefore,  as  it  had  he<^un  ho- 
tween  the  op])osite  principles  of  ])opularand  state  representation 
until  It  resulted  in  an  absolute  difference,  requiring  mutual  conces- 
sions, or  an  ahandonment  of  the  effort  to  form  a constitution. 

On  the  day  following  that  on  which  Hamilton  had  addressed 
the  committee,  Mr.  Madison  entered  into  an  elaborate  examina- 
tion of  the  idan  proposed  by  the  minority.  The  ]n-evious  con<rres- 
sional  experience  of  this  distinguished  and  sagacious  man  had'^well 
quahhed  him  to  detect  the  imperfections  of  a system  calculated  to 
l>orpetuate  the  evils  under  which  the  country  had  lono-  suffered. 
Ills  object  now  was  to  show  that  a union  founded  on  the  ijrinci 
pie  of  the  Confederation,  and  containing  no  diminution  of  the  ex- 
isting powers  of  the  states,  could  not  accomplish  even  the  prinm- 
pal  objects  of  a general  government.  It  would  not,  he  observed 
in  the  first  place,  prevent  the  states  from  violating,  as  they  had 
all  along  violated,  the  obligations  of  treaties  with  foreign  powers  • 
for  It  left  them  as  uncontrolled  as  they  had  always  been.  It 

V ould  not  restrain  the  states  from  encroaching  on  the  federal  au 
thority,  or  prevent  breaches  of  the  federal  articles.  It  would  not 
secure  that  equality  of  privileges  between  the  citizens  of  different 
states,  and  that  impartial  administration  of  justice  the  want  of 

V iich  had  threatened  both  the  harmony  and  the  peace  of  the 
L nion.  It  would  not  secure  the  republican  theory,  which  vested 
the  right  and  the  power  of  government  in  the  majority,  as  the 
case  of  Massachusetts  then  demonstrated.  It  would  not  secure 

he  Union  against  the  influence  of  foreign  powers  over  its  mem- 
bers Whatever  might  have  been  the  case  with  ours,  all  forme.- 
confederacies  had  exhibited  the  effects  of  intrigues  practised  upon 
them  by  other  nations;  and  as  the  New  Jersey  plan  gave  to  the 
pneral  councils  no  negative  on  the  will  of  the  particular  states,  it 
left  us  exposed  to  the  same  pernicious  machinations. 

He  begged  the  smaller  states,  which  had  brought  forward  this 
p an,  to  consider  in  what  position  its  adoption  would  leave  them 
They  would  be  subject  to  the  whole  burden  of  maintaining  their 
delegates  m Congress.  They,  and  they  alone,  would  feel  the  power 
of  coercion  on  which  the  efficacy  of  this  plan  depended,  for  the 


CONSTITUTIONAL  HISTORY. 


380 

larger  states  would  be  too  powerful  for  its  exercise.  On  the  other 
hand,  if  the  obstinate  adherence  of  the  smaller  states  to  an  inad- 
missible system  should  prevent  the  adoption  of  any,  the  Union 
must  be  dissolved,  and  the  states  must  remain  individually  inde- 
pendent and  sovereign,  or  two  or  more  new  confederacies  must  be 
formed.  In  the  first  event,  would  the  small  states  be  more  secure 
against  the  ambition  and  power  of  their  larger  neighbors  than 
they  would  be  under  a general  government  pervading  with  equal 
energy  every  part  of  the  empire,  and  having  an  equal  interest  in 
protecting  every  part  against  every  other  part  ? In  the  second 
event,  could  the  smaller  states  expect  that  their  larger  neighbors 
would  unite  with  them  on  the  principle  of  the  present  Confederacy,  . 
or  that  they  would  exact  less  severe  concessions  than  were  pro- 
posed in  the  Virginia  scheme? 

The  great  difficulty,  he  continued,  lay  in  the  affair  of  repre- 
sentation ; and  if  that  could  be  adjusted  all  others  would  be  sur- 
mountable. It  was  admitted  by  both  of  the  gentlemen  from  ISew 
Jersey ' that  it  would  not  be  just  to  allow  Virginia,  which  was  six- 
teen times  as  large  as  Delaware,  an  equal  vote  only.  Their  lan- 
guage was,  that  it  would  not  be  safe  for  Delaware  to  allow  Vir- 
ginia sixteen  times  as  many  votes.  Their  expedient  was,  that  all 
the  states  should  be  thrown  into  one  mass,  and  a new  partition  be 
made  into  thirteen  equal  parts.  Would  such  a scheme  be  piacti- 
cable?  The  dissimilarities  in  the  rules  of  property,  as  well  as  in 
the  manners,  habits,  and  prejudices  of  the  different  states,  amount- 
ed to  a prohibition  of  the  attempt.  It  had  been  impossible  for 
the  power  of  one  of  the  most  absolute  princes  in  Europe,  diiected 
by  the  wisdom  of  one  of  the  most  enlightened  and  patriotic  min- 
isters that  any  age  had  produced,^  to  equalize  in  some  points  only 
the  different  usages  and  regulations  of  the  different  provinces. 
But,  admitting  a general  amalgamation  and  repartition  of  the 
states  to  be  practicable,  and  the  danger  apprehended  by  the  smaller 
states  from  a proportional  representation  to  be  real,  would  not 
their  special  and  voluntary  coalition  with  their  neighbors  be  less 
inconvenient  to  the  whole  community  and  equally  effectual  foi 
their  own  safety?^  If  New  Jersey  or  Delaware  conceived  that 


’ Mr.  Brcarly  and  Mr.  Patterson.  ' Louis  XVI.  ’ Necker. 

^ Mr.  Patterson  bad  said  that,  if  they  were  to  depart  from  tlie  principle  of 


'381 


THE  OPINIONS  OF  HAMILTON. 

iui  advantage  would  accrue  to  tliem  from  au  equalization  of  the 
states,  in  wliicli  case  they  would  necessarily  form  a junction  with 
their  neighbors,  why  might  not  tliis  end  be  attained  l)y  leaving 
them  at  liberty  to  form  such  a junction  whenever  they  pleased"? 
And  why  should  they  wish  to  obtrude  a like  arrangement  on  all 
tiie  states,  when  it  was,  to  say  the  least,  extremely  difficult,  and 
would  be  obnoxious  to  many  of  the  states,  and  when  neither  the 
inconvenience  nor  the  benefit  of  the  expedient  to  themselves  would 
be  lessened  by  confining  it  to  themselves  ? The  prospect  of  many 
new  states  to  the  westward  was  another  consideration  of  impor- 
tance. If  they  should  come  into  the  Union  at  all,  they  would 
come  when  they  contained  but  few  inhabitants.  If  they  should  be 
entitled  to  vote  according  to  their  proportion  of  inhabitants,  all 
would  be  right  and  safe.  Let  them  have  an  equal  vote,  and  a more 
objectionable  minority  than  ever  might  give  law  to  the  whole.’ 

At  the  close  of  Mr.  Madison’s  remarks  the  committee  decided, 
by  a vote  of  seven  states  against  three,  one  state  being  divided' 
to  report  the  Virginia  plan  to  the  Convention.  The  delegation 
of  New  York  (with  the  exception  of  Hamilton)  and  those  of  New 
Jersey  and  Delaware  constituted  the  negative  votes.  The  vote 
of  Maryland  was  divided  by  Luther  Martin,  who  had  constantly 
acted  with  the  minority.  The  vote  of  Connecticut  was  given  for 
the  report,  but  she  was  not  long  to  remain  on  that  side  of  the 
question." 


equal  sovereignty,  the  only  expedient  that  would  cure  the  difficulty  would  be  to 
tlirow  the  states  into  hotdipot.  To  say  that  tliis  was  impracticable  would  not 
make  it  so.  Let  it  be  tried,  and  they  would  see  whether  Massachusetts  Peun- 
sylvania,  and  Virginia  would  accede  to  it.— Madison,  Elliot,  V.  194 
‘ Elliot,  V.  206-311. 

’ Madison,  Elliot,  V.  313.  Journal,  Elliot,  1. 180.  This  vote  was  taken,  and 
I le  committee  of  the  whole  were  discharged,  on  the  19th  of  June. 


NOTE  ON  THE  OPINIONS  OP  HAMILTON. 

The  idea  has  been  more  or  less  entertained,  from  the  time  of  the  Conven- 
vention  to  the  present  day,  that  Hamilton  desired  the  establishment  of  a »io- 
narchiml  government.  Tliis  impression  has  arisen  partly  from  the  theoretical 
opinions  on  government  which  he  undoubtedly  held,  and  which  he  expressed 
with  entire  freedom  in  the  course  of  the  debate,  of  which  an  account  has  been 


gg2  CONSTITUTIONAL  HISTORY. 

n-iven  iQ  tlie  nvcvious  cluipter;  aiul  partly  from  the  nature  of  some  of  liis  propo- 
sitions, especially  tliat  for  an  executive  during  good  belnmor,  wi.ioli  ''as  been 
sometimes  assumed  to  liave  been  the  same  tiling  as  an  executive  for  life  I 
believe  that  the  imputation  of  a purpose  on  his  part  to  bring  about  the  estab- 
lisliment  of  any  system  not  essentially  republican  in  its  spirit  and  forngs  is  un- 
founded  and  unjust,  and  that  it  can  be  shown  to  be  so. 

Mr  Luther  Martin,  in  his  celebrated  letter  or  report  to  the  legislature  ol 
M irvland  on  the  doings  of  the  Federal  Convention,  referred  to  a distinct  nio- 
iiarehical  party  in  that  body,  “whose  object  and  wish,”  he  said,  “it  was  to 
abolish  and  annihilate  all  state  governments,  and  to  bring  forward  one  general 
government  over  this  whole  continent,  of  a monarchical  nature,  under  certain 
Ltrictions  and  limitations.  Tl.ose  who  openly  avowed  this  sentiment,  he 
said  “ were,  it  is  true,  but  few  ; yet  it  is  equally  true  tliat  there  was  a considci- 
able’ number  who  did  not  openly  avow  it,  who  were,  by  myselt  and  many  others 
of  the  Convention,  considered  as  being  in  reality  favorers  ot  that  sentiment  and 
actiim  upon  those  principles,  covertly  endeavoring  to  carry  into  effect  what  they 
well  knew  openly  and  avowedly  could  not  be  accomplished,”  He  then  goes 
on  to  say  that  there  was  a second  party,  who  were  “not  for  the  abolition  of  the 
state  governments,  nor  for  the  introduction  of  a monarchical  goveniment  under 
any  form;  but  they  wished  to  establish  such  a system  as  could  give  their  own 
states  undue  power  and  influence,  in  the  goveniment,  oyer  the  other  states. 
“A  tliird  partv,”  he  adds,  “was  what  I considered  truly  federal  and  iepul- 
lican  •”  that  i's  to  say,  it  consisted  of  the  delegations  from  Connecticut,  New 
York' New  .Jersev,  Delaware,  and  in  part  from  Maryland,  and  of  some  members 
from  other  states,  who  were  in  favor  of  a feder.al  equality  and  the  old  principle 

of  the  Confederation.  _ . ^ ^ a ’ 

Upon  this  rule  of  classiBcatioii  the  test  of  republicanism  was  to  be  found  in 
the' views  entertained  by  members  upon  the  question  whether  the  state  goyern- 
ments  omdit  to  be  abolished.  Mr.  Martin,  indeed,  went  furtlier,  and  coiisideied 
those  only  as  truly  republican  who  were  in  favor  of  a purely  federa 
opposed  to  any  plan  of  popular  representation.  Now  it  is  quite  cleai  that 
abolition  of  the  state  governments,  so  far  as  that  subject  yyas  considered  at  a 
and  in  the  sense  in  which  it  was  at  any  time  mentioned,  did  not  necessarily  lead 
to  rrwnarchy  as  a conclusion.  The  reduction  Of  the  state  goyernmeuts  to  local 
corporations  and  to  the  position  of  subordinate  agents  of  the  ceiitia  goieri 
meiit  was  considered  by  some  as  a necessary  consequence  of  a national  icprc- 
sentative  government.  This  arose  from  the  circumstance  that  a union  ot  fed- 
eral and  national  representation  had  nowhere  been  witnessed,  and  had  not 
rtiereL-e  been  considered.  I have  already  suggested,  in  the  text,  that  if  t 
framers  of  the  Constitution  had  gone  on  to  the  adoption  of  a pine  system 
popular  and  proportional  representation  in  all  the  branches  of  the  government, 
they  must  inevitably  have  bestowed  upon  that  government  full 
cr  over  all  subjects;  otherwise  they  would  have  left  the  states,  possessed  of  tl|e 
sovereign  powers  of  a distinct  political  organization,  to  contend  " ' * « « 
tioiial  government  by  advei-se  legislation.  The  subsequent  expedient  of  a diicct 


THE  OPINIONS  OF  HAMILTON 


383 


and  equal  representation  of  the  states  in  one  branch  of  tlie  govern, nent  has  in 
leality,  to  a g,-cat  fleg.-ee,  disarmed  shvte  jealousy  and  oirposition,  by  givino  to 
the  slates  as  political  bodies  an  equal  voice  in  the  check  established  bv^he 
i)i;uich  in  which  they  arc  represented. 

So  that  to  argue  that,  because  there  were  men  wlio  saw  the  necessity  for 
making  a inirely  national  or  proportionate  system  of  popular  representation 
consistent  with  the  situation  in  wiiich  it  would  place  the  country  tliey  were 
t lei  elore  in  favor  of  a monarchical  system,  was  to  argue  from  premises  to  a con- 
clusion 1,1  no  way  connected.  Hail  such  a plan  been  carried  out  it  could  have 
been,  and  must  have  been,  purely  republican  in  all  its  details;  and  it  would 
lave  been  liable  to  the  reiiroach  of  being  monarchical  in  no  other  sense  than  any 
system  which  did  not  yield  the  point  of  a full  federal  equality,  for  wliich  Mr. 
Mill  till  and  Ins  party  contended. 

Undoubtedly  Hamilton,  as  I have  said,  was  in  favor  of  bestowing  upon  the 
nation, al  government  full  power  to  legishate  upon  all  subjects;  and  to  this  ex 
tent,  and  in  this  sense,  he  pro,,osed  the  abolition  of  the  state  governments 
Bii  any  one  who  will  attend  carefully  to  the  course  of  his  argument -imper- 
fectly as  It  has  been  preserved-will.find  that  it  embraces  the  following  course 
of  reasoning.  All  federal  governments  are  weak  and  distracted.  In  order  to 
avoid  the  evils  incident  to  that  form,  the  government  of  the  American  Union 
must  be  a national  representative  system.  But  no  such  system  can  be  success- 
ful, in  the  actual  situation  of  tins  country,  unless  it  is  endowed  with  all  the 
principles  and  means  of  influence  and  power  which  are  the  proper  supports  of 
government  t must  therefore  be  made  completely  sovereign,  and  stale  power 
as  a separate  legis  at  ve  antliority,  must  be  annihilated;  otherwise  the  states 
will  be  no  only  ab  e,  but  will  be  constantly  tempted,  to  exert  their  own  aiithor- 

th^at'hlTl  ‘■'"‘''"'■''y  f.  I •■'I'-eady  expressed  the  opinion 
that,  this  view  of  the  subject,  assuming  that  the  states  were  not  to  be  admitted 

o an  equ.al  representation  as  political  corporations  in  any  branch  of  the  .rovern- 
ment-as  the  framers  and  friends  of  the  Virginia  plan  had  thus  &r  contended- 
aniilton  was  right.  I believe  that  a constitution  in  which  the  states  had  not 
been  placed  upon  an  equal  footing  in  one  branch  of  the  legislative  power  and 
nnder  which  the  state  sovereignties  had  been  left  as  they  were  left  by  the’  svs- 
ein  actually  adopted,  if  it  could  have  been  ratifled  by  all  the  states,  could  not 
_,ave  endured  to  onr  times.  Yet  the  fortunate  result  of  the  mixed  system  that 
IS  embraced  in  the  Cmstitution  of  the  United  States  is  the  product,  not  simply 

1;  t:;i;  »'  • »">r” 

m-o-fr  'inti-republican  tendencies  or  designs  h.as  been  most  often 

,,ed  against  Hamilton  on  account  of  his  theoretical  opinions  coneeruiim  the 
comparative  merits  of  different  governments,  and  of  certain  features  of  the^!an 
of  a constitution  which  he  read  to  the  Convention.  With  respect  to  these 
1 omts  I shall  state  the  results  of  a very  careful  examination  which  I have  made 
of  all  the  sources  of  information  as  to  the  views  and  opinions  which  he  ex- 
pressed  or  entertained.  Mr.  Madison  has  given  us  what  he  probably  intended 


38i 


CONSTITUTIONAL  HISTORY. 

■IS  a full  report  of  at  least  tlie  substance  of  Hamilton’s  great  speech  addressed 
io  the  committee  of  the  whole,  and  lias  informed  us  that  his  report  was  sub- 
mitted to  Colonel  Hamilton,  who  approved  it,  with  a few  verbal  changes.  But 
how  meagre  a report,  whicli  fills  but  six  pages  in  the  octavo  edition  of  Mr.  Mad- 
ison’s  “ Debates,”  must  have  been  in  comparison  with  the  speech  actually  made 
by  Hamilton,  will  occur  to  every  reader  who  notices  the  fact  that  the  speecli 
oceupied  tlie  entire  session  of  one  day  (June  18),  and  who  examines  the  brief 
from  which  he  spoke,  and  which  is  still  extant.  (Hamilton’s  Works,  II.  409.) 

He  was  an  earnest,  and  I am  inclined  to  think  a fervid  and  rapid  speaker. 
Certainty  he  spoke  from  a mind  full  of  knowledge  of  the  principles  and  the 
working  of  other  systems  of  polity,  and  possessed  of  resources  which  have  never 
been  excelled  in  any  statesman  who  has  been  called  to  aid  in  the  work^  of  creat- 
ine- a o-overnment.  The  topies  set  down  in  his  brief  exhibit  a very  wide  range 
ofttioue-ht,  enriched  by  copious  illustrations  from  the  history  and  experience  of 
other  countries,  and  from  the  views  of  the  most  important  writers  on  govern- 
ment; while  the  whole  argument  bears  logically  and  closely  upon  the  actual 
situation  of  our  Confederacy  and  upon  the  questions  at  issue.  It  is  not  proba- 
ble therefore,  that  Mr.  Madison’s  report  gives  us  an  adequate  idea  of  the  speech, 
or  fully  exhibits  its  reasoning.  I have  collated  it,  sentence  by  sentence,  with 
tlie  report  in  Judge  Yates’s  Minutes,  and  with  Hamilton’s  own  brief,  and  have 
prepared  for  my  own  use  a draft  containing  the  substance  of  what  these  three 
sources  can  give  us.  The  results  may  be  thus  given : , , 

1.  That  Hamilton,  in  stating  his  views  of  the  theoretical  value  of  different 
sv-tems  of  <roveriunent,franklv  expressed  the  opinion  that  the  British  Constitu- 
lion  was  the  best  form  which  the  world  had  then  prodiiced-citing  the  praise 
bestowed  upon  it  by  Necker,  that  it  is  the  only  government  “ which  unites  pub- 
lie  strength  with  individual  security. 

i That,  with  equal  cleaimess,  he  stated  it  as  his  opinion  that  none  but  a 
republican  form  could  be  attempted  in  this  country,  or  would  be  adapted  to  our 

situation.  _ . 

3.  That  he  proposed  to  look  to  the  British  Constitution  for  nothing  but 

those  elements  of  stabilitv  and  permiineiicy  which  a republican  system  requires, 
and  which  may  be  incorporated  into  it  without  clianging  its  characteristic 

principles. 

The  only  question  that  remains,  in  order  to  form  a judgment  of  his  purposes, 
is  whether  there  was  anything  in  the  plan  of  a constitution  drawn  up  by  him 
that  is  inconsistent  with  the  spirit  of  republican  liberty.  The  answer  is,  that 
there  was  not.  There  is  throughout  this  plan  a constant  recognition  of  the 
authority  of  the  people,  as  the  source  of  all  political  power.  It  proposed 
that  the  members  of  the  Assembly  should  be  elected  by  the  people  directly,  and 
the  members  of  the  Senate  by  electors  chosen  for  the  purpose  by  the  people. 
The  executive  was  in  like  manner  to  be  chosen  by  electors,  appointed  by  the 
people  or  by  the  state  legislatures.  So  far,  therefore,  his  plan  was  as  strictly 
republican  as  is  that  of  the  Constitution  under  which  we  are  actually  Imng. 
But  he  proposed  that  the  executive  and  the  senators  should  hold  their  offices 


385 


the  opinions  of  Hamilton. 

during  good  leJunior;  and  tliis  1ms  been  his  oTence  against  rei)iildicanisin,  with 
those  who  measure  tlie  character  of  a system  by  the  frequeney  with  which  it 
admits  of  rotation  in  olliee.  His  accusers  Imvc  failed  to  notice  that  he  made  his 
e.xcciitive  personally  rcsponsil)le  for  otiieial  misconduct,  and  provided  that  both 
he  and  the  senators  should  be  subject  to  impeachment  and  to  removal  from 
office.  I his  was  a wide  departure  from  the  principles  of  the  English  Constitu- 
tion, and  it  constitutes  a most  important  distinction  between  a republican  and  a 
monarchical  system,  when  it  is  accompanied  by  the  fact  that  the  office  of  a 
ruler  or  legislator  is  attained,  not  by  hereditary  right,  or  the  favor  of  the  crown 
but  by  the  favor  anil  choice  of  tlie  people.  ’ 

I have  thus  stated  the  principal  points  to  which  the  inquiries  of  the  reader 
should  he  directed  in  investigating  the  opinions  of  this  great  man,  because  I 
believe  it  to  be  unjust  to  impute  to  liiiii  any  other  than  a sincere  desire  for  the 
establishment  and  success  of  republican  government.  That  he  desired  a strono- 
government,  that  lie  was  little  disposed  to  dogmatize  upon  abstract  theories  of 
liberty,  and  that  he  trusted  more  to  ex])erienc6  than  to  hypothesis,  may  be  safely 
assumed.  But  that  he  ardently  desireil  the  success  of  that  republican  freedom 
which  is  founded  on  a perfect  equality  of  rights  among  citizens,  exclusive  of 
hereditary  distinctions,  is  as  certain  as  that  he  labored  earnestly  throuo-hout  his 
life  for  the  maxims,  the  doctrines,  and  the  systems  which  he  believed  most  likely 
to  secure  for  it  a fair  trial  and  ultimate  success.  (See  his  description  of  his  own 
opinions,  when  writing  of  himself  as  a third  person  in  1792 ; Works,  VII.  52.) 

That  the  system  of  government  sketched  by  Hamilton  was  not  received  by 
many  of  those  who  listened  to  him  with  disapprobation  on  account  of  what  has 
since  been  supposed  its  momtrcUml  character  wo  may  safely  assume  on  the 
testimony  of  Dr.  Johnson,  of  Connecticut,  one  of  the  most  moderate  men  in  the 
Convention.  Contrasting  the  New  Jersey  and  Virginia  plans,  he  is  reported  (by 
Ytes)  to  have  said  : “ It  appears  to  me  that  the  Jersey  plan  has  for  its  principal 
object  the  preservation  of  the  state  governments.  So  far  it  is  a departure  from 
the  plan  of  Virginia,  which,  although  it  concentrates  in  a distinct  national  n.„v- 
eminent,  IS  not  totally  independent  of  that  of  the  states.  A gentleman  Lm 
ew  ork,  with  boldness  and  decision,  proposed  a system  totally  different  from 
loth ; and  althovgh  he  7ms  been  praised  by  everybody,  he  has  been  suiiported  by 
none.”  (Yates’s  Minutes,  Elliot,  I.  431.) 

Even  Luther  Martin  did  not  seem  to  regard  the  objects  of  what  he  called  the 
monarchical  party  as  being  any  worse,  or  more  dangerous  to  liberty,  than  the 
projects  of  those  whom  he  represented  as  aiming  to  obtain  undue  power  and 
.nfluence  for  their  own  states,  and  whom  at  the  same  time  he  acquitted  of  mo- 
narchical  designs  or  a desire  to  abolish  tlie  state  governments.  The  truth  is 
that  nobody  had  any  improper  purposes,  or  anything  at  heart  but  the  liberties 
and  happiness  of  the  people  of  America.  We  are  not  to  try  the  speculative 

117  ’’y  cl'arges  or  complaints 

elicited  in  the  heats  of  conflicting  opinions  and  interests,  inflamed  by  a zL  too 

warm  to  .admit  the  possibility  of  its  own  error,  or  to  perceive  the  wisdom  and 
imrity  of  an  opponent. 

I.— 25 


CHAPTEK  XXII. 


Conflict  between  the  National  and  Fedekai.  Systems.  Divi- 
sion OF  THE  LeGISLATUKE  INTO  TwO  CHAMBERS.— DISAGREE- 
MENT OF  THE  States  on  the  Kepkesentation  in  the  Two 
Branches. — Threatened  Dissolution  of  the  Union. 


We  are  now  approaching  a crisis  in  the  action  of  the  Conven- 
tion, the  history  of  which  is  full  of  instruction  for  all  succeeding 
generations  of  the  American  people.  We  have  witnessed  the 
formation  of  a minority  of  the  states,  whose  bond  of  connection 
was  a common  opposition  to  the  establishment  of  what  was  re- 
garded as  a “national”  government.  The  structure  of  this  mi- 
nority, as  well  as  that  of  the  majority  to  which  they  were  op- 
posed, the  motives  and  purposes  by  which  both  were  animated, 
and  the  results  to  which  their  conflicts  finally  led,  are  extremely 


important  to  be  understood  by  the  reader. 

The  relative  rank  of  the  different  states  in  point  of  population 
at  the  time  of  the  formation  of  the  Constitution  was  materially 
different  from  what  it  is  at  the  present  day.  Virginia,  then  the 
first  state  in  the  Union,  is  now  the  fourteenth.  New  York,  now 
at  the  head  of  the  scale,  then  ranked  after  North  Carolina  and 
Massachusetts,  which  occupied  the  third  and  fourth  positions  in 
the  first  census,  and  which  now  occupy  respectively  the  htteentti 
and  seventh.  South  Carolina  is  now  the  twentieth  state,  and 
Maryland  is  the  twenty-third.  The  population  of  Georgia  is  still 

larger  than  that  of  New  Jerse3^  as  it  was  in  178  (. 

Great  inequalities  existed,  as  they  still  exist,  between  the  dif- 
ferent members  of  the  Confederacy,  not  only  m the  actual  num- 
bers of  their  inhabitants  and  their  present  wealth,  but  in  then 
capacity  and  opportunity  of  growth.  Virginia,  with  a population 
fourteen  times  as  large,  had  a territorial  extent  of  thirty  times  the 
size  of  Delaware.  Pennsylvania  had  nearly  seven  times  as  man\ 
people  as  Khode  Island,  and  nearly  forty  times  as  much  territory. 


RELATIVE  RANK  OF  THE  STATES.  337 

Tlie  state  of  Georgia  numbored  a little  more  than  a third  as  many 
peo[)le,  blit  her  territory  was  nearly  twelve  times  as  large  as  the 
territory  of  Connecticut. 

The  four  leading  states,  Virginia,  Penn^lvania,  North  Caro- 
lina, and  Massachusetts,  had  an  obvions  motive  for  seeking  the 
establishment  of  a government  founded  on  a proportionate  repre- 
sentation of  their  respective  populations.  The  states  of  South 
Carolina  and  Georgia  had  generally  acted  with  them  in  the  forma- 
tion of  the  Virginia  plan,  and  these  six  states  thus  constituted  the 
majority  by  which  the  principle  of  what  was  called  a “ national,” 
in  distinction  from  a “federal”  government,  had  been  steadily 
pressed  to  the  conclusions  arrived  at  in  the  committee  of  the 
whole,  and  now  embraced  in  its  report.'  All  but  two  of  them 
Avere  certain  to  remain  slaveholding  states ; bat  in  the  adoption  of 
numbers  as  the  basis  of  representative  influence  in  the  govern- 
ment they  all  had  a common  interest,  which  led  them  for  the  pres- 
ent  to  act  together." 

At  the  head  of  the  minority,  or  the  states  which  desired  a gov- 
ernment of  federal  equality,  stood  the  state  of  New  York,  then 
the  fifth  state  in  the  Union.  She  was  represented  by  Alexander 
Hamilton,  Eobert  l ates,  and  John  Lansing,  Junior.  The  two 
latter  uniformly  acted  together,  and  of  course  controlled  the  vote 
of  the  state.  Hamilton’s  vote  being  thus  neutralized,  his  influence 
on  the  action  of  the  Convention  extended  no  further  than  the 
weight  and  importance  attached  to  his  arguments  by  those  who 
listened  to  them. 

Occupying  at  that  period  nearly  a middle  rank  between  the 
largest  and  the  smallest  of  the  states  with  respect  to  population. 
New  lork  had  not  yet  grasped,  or  even  perceived,  the  wonderful 
elements  of  her  future  greatness.  Her  commerce  was  not  in- 
considerable, but  it  had  hitherto  been  the  disposition  of  those 
who  ruled  her  counsels  to  retain  its  regulation  in  their  own  hands, 
and  to  subject  it  to  no  imposts  in  favor  of  the  general  interests  of 
the  Union.  Most  of  her  public  men,’  also,  held  it  to  be  impracti- 

^ Rhode  Island  was  never  represented  in  the  Convention,  and  the  delegation 
of  New  Hampshire  liad  not  yet  attended. 

' In  all  these  statements  of  the  relative  rank  of  the  states  I compare  the  cen- 
sus of  1790  and  that  of  1850. 

2 The  two  great  exceptions,  of  course,  were  Hamilton  and  Jay. 


CONSTITUTIONAL  HISTORY. 


388 

cable  to  establish  a general  government  of  sufficient  energy  to 
pervade  every  part  of  the  United  States,  and  to  carry  its  appro- 
priate benefits  equally  to  ail,  without  sacrificing  the  constitutional 
rights  of  the  states  to  an  extent  that  would  ultimately  prove  to  be 
dangerous  to  the  liberties  of  their  people.  Their  view  of  the  sub- 
ject°was,  that  the  uncontrolled  powers  and  sovereignties  of  the 
states  must  be  reserved ; and  that,  consistently  with  the  reserva- 
tion of  these,  a mode  might  be  devised  of  granting  to  the  Confed- 
eracy the  moneys  arising  from  a general  system  of  revenue,  some 
power  of  regulating  commerce  and  enforcing  the  observance  of 
treaties,  and  other  necessary  matters  of  less  moment.  This  was 
the  opinion  of  Yates,  the  chief-justice  of  the  state,  who  may  be 
taken  as  a fair  representative  of  the  sentiments  of  a large  part,  if 
not  of  a majority,  of  its  people  at  this  time.'  But  neither  he,  nor 
any  of  those  who  concurred  with  him,  succeeded  in  pointing  out 
the  mode  in  which  the  power  to  collect  revenues,  to  regulate  com- 
merce, and  to  enforce  the  observance  of  treaties  could  be  conferred 
on  the  Confederacy  without  impairing  the  sovereignties  of  the 
states.  It  does  not  appear  whether  this  class  of  statesmen  con- 
templated a grant  of  full  and  unrestrained  power  over  these  sub- 
jects to  a federal  government,  or  whether  they  designed  only  a 
qualified  grant,  capable  of  being  recalled  or  controlled  by  the  par- 
ties to  the  Confederacy,  for  reasons  and  upon  occasions  of  which 
those  parties  were  to  judge.  From  the  general  course  of  their 
reasonino'  on  the  nature  of  a federal  government,  it  might  seem 
that  the°latter  was  their  intention.'  It  is  not  difficult  to  under- 
stand how  these  gentlemen  may  have  supposed  that  an  irrevoca- 
ble grant  of  powers  to  a general  government  might  be  dangerous 
to  the  liberties  of  the  people  of  the  states,  because  such  a grant 


. See  the  candid  and  moderate  letter  of  Messrs.  Yates  and  Lansing  to  the 
legislature  of  the  state,  giving  their  reasons  for  not  signing  the  Constitution. 

tlm  New  Jersey  plan,  wliich  the  New  York  gentlemen  (Hamilton  except- 
ed) supported,  although  the  power  to  levy  duties  and  the  regulation  of  eommerce 
were  to  be  added  to  the  existing  powers  of  the  old  Congress,  yet  as  these  powus 
were  to  be  exerted  against  the  states,  in  the  last  resort,  by  force,  it  would  only 
have  been  necessary  for  a state  to  place  itself  in  an  attitude  of  resistance  by  a 
public  act,  and  then  the  grant  of  power  might  have  been  considered  to  be  le- 
yoked  by  the  very  at  of  resisting  its  execution. 


ATTITUDE  OF  MARYLAND. 


389 

would  involve  a surrender  of  more  or  less  of  the  original  state 
sovereignties  to  a legislative  body  external  to  the  state  itself.  But 
if  they  supposed  that  a grant  of  such  powers  could  be  made  to  a 
“federal”  government,  or  a political  league  of  the  states,  acting 
through  a single  body  in  the  nature  of  a diet,  and  to  be  exer- 
cised when  necessary  by  the  combined  military  power  of  the 
Avhole,  and  yet  be  any  less  dangerous  to  liberty,  it  is  difficult 
to  appreciate  their  fears  or  to  perceive  the  consistency  of  their 
})lan.  If  the  liberties  of  the  people  were  any  the  less,  exposed 
undei  their  system  than  under  that  of  a “ national  ” govern- 
ment, it  must  have  been  because  their  system  was  understood 
b}^  them  to  involve  only  a qualified  and  revocable  surrender  of 
state  sovereignty. 

But  however  this  may  have  been,  there  was  undoubtedly  a set- 
tled conviction  on  the  part  of  the  two  delegates  of  New  York 
who  controlled  the  vote  of  the  state  in  the  Convention  that  they 
had  not  received  the  necessary  authority  from  their  own  state  to 
go  beyond  the  principle  of  the  Confederation ; that  it  would  be 
impracticable  to  establish  a general  government  without  impair- 
ing the  state  constitutions  and  endangering  the  liberties  of  the 
people  ; and  that  what  they  regarded  as  a “ consolidated  ” govern- 
ment was  not  in  the  remotest  degree  within  the  contemplation  of 
the  legislature  of  J^Tew  lork  when  they  were  sent  to  take  their 
seats  in  the  Convention. 

The  same  sentiments,  with  far  greater  zeal,  with  intense  feel- 
ing and  some  acrimony,  were  held  and  acted  upon  by  Luther  Mar- 
tin of  Maryland,  a very  eminent  lawyer,  and  at  that  time  attorney- 
general  of  the  state,  who  sometimes  had  it  in  his  power,  from  the 
absence  of  his  colleagues,  to  cast  the  vote  of  his  state  with  the 
minority,  and  who  generally  divided  it  on  all  critical  questions 
that  touched  the  nature  of  the  government.  The  state  itself,  with 
a population  but  a little  less  than  that  of  New  York,  had  no  great 
reason  to  regard  itself  as  peculiarly  exposed -to  the  dangers  to  be 
apprehended  from  combinations  among  the  larger  states  to  oppress 
the  smaller , and  it  does  not  appear  that  these  apprehensions  were 
strongly  felt  by  any  of  her  representatives  excepting  Mr.  Martin.* 


* Three  of  the  delegates  of  the  state,  James  McHenry,  Daniel  of  St.  Thomas 
Jenifer,  and  Daniel  Carroll,  signed  the  Constitution. 


CONSTITUTIONAL  HISTORY. 


390 

The  great  energy  and  earnestness,  however,  of  that  distinguished 
person  prevented  a concurrence  of  the  state  with  the  purposes  and 
objects  of  the  majority. 

Connecticut  might  reasonably  consider  herself  as  one  of  the 
smaller  states,  and  her  vote  was  steadily  given  for  an  eqfiality  of 
suffrage  in  both  branches  of  the  national  legislature,  down  to  the 
time  of  the  final  division  upon  the  Senate.  The  states  of  ]New 
Jersey  and  Delaware  formed  the  other  members  of  the  minority 
upon  this  general  question. 

On  the  one  side,  therefore,  of  what  would  have  been,  but  for 
the  great  inequalities  among  the  states,  almost  a purely  specula- 
tive question,  we  find  a strong  determination,  the  result  of  an  ap- 
parent necessity,  to  establish  a government  in  which  the  demo- 
cratic majority  of  the  whole  people  of  the  United  States  should  be 
the  ruling  power  5 and  in  which,  so  far  as  state  influence  was  to 
be  felt  a”  all,  it  should  be  felt  only  in  proportion  to  the  relative 
numbers  of  the  people  composing  each  separate  community . It  was 
considered  by  those  who  embraced  this  side  of  the  question  that, 
when  the  great  states  were  asked  to  perpetuate  the  system  of  fed- 
eral equality  on  w^hich  the  Confederation  had  been  founded,  they 
were  asked  to  submit  to  mere  injustice,  on  account  of  an  imagi- 
nary danger  to  their  smaller  confederates.  They  held  it  to  be 
manifestly  wrong  that  a state  fourteen  times  as  large  as  Delaware 
should  have  only  the  same  number  of  votes  in  the  national  legis- 
lature. Whether  the  states  w^ere  now  met  as  parties  to  a sub- 
sisting confederacy,  under  which  they  might  be  regarded  in  the 
same^ight  as  the  individuals  composing  the  social  compact,  or 
whether  they  were  to  be  looked  upon  as  so  many  aggregates  of 
individuals  for  whose  personal  rights  and  interests  provision  was 
to  be  made,  as  if  they  composed  a nation  already  united,  it  was 
believed  by  the  majority  that  no  safe  and  durable  government 
could  be  formed  if  the  democratic  element  were  to  be  excluded. 
Pure  democracies  had  undoubtedly  been  attended  with  inconven- 
iences. But  how  could  peace  and  real  freedom  be  preserved,  undei 
the  republican  form,  if  half  a million  of  people  dwelling  in  one 
political  division  of  the  country  possessed  only  the  same  suffrage 
in  the  enactment  of  laws  as  sixty  thousand  people  dwelling  in  an- 
other division?  Leave  out  of  view  the  theory  which  taught  that 
the  states  alone,  regarded  as  members  of  an  existing  compact. 


VIEWS  OF  THE  MINORITY. 


391 

must  be  considered  as  the  parties  to  the  new  system,  as  they  had 
been  to  the  old,  and  it  would  be  found  that  the  political  cviuality 
of  the  free  citizens  of  the  United  States  could  be  made  a source 
of  that  energy  and  strength  so  much  needed  and  as  yet  so  little 
known.  With  it  was  connected  the  idea  and  the  practicability 
of  legislation  that  Avould  reach  and  control  individuals.  With- 
out It  there  could  be  only  a system  of  coercion  of  the  states, 
V hose  opposition  would  be  invited,  rather  than  repressed,  upon 
all  occasions  of  importance.  Abandon  the  necessary  principle 
of  governing  by  a democratic  majority,  said  George  Mason,  and 
if  the  government  proceeds  to  taxation  the  states  will  oppose  its 
power.* 

On  the  other  hand,  the  minority,  insisting  on  a rigid  construc- 
tion of  their  powers,  and  planting  themselves  upon  the  nature  of 
the  compact  already  formed  between  the  states,  contended  that 
these  separate  and  sovereign  communities  had  distinct  govern- 
ments already  vested  with  the  whole  political  power  of  their 
respective  populations,  and  therefore  that  they  could  not,  consist- 
ently with  the  truth  of  their  situation,  act  as  if  the  whole  or  any 
considerable  part  of  that  power  could  be  transferred  by  the  peo- 
ple themselves  to  another  government.  They  said,  that  whatever 
power  was  to  be  conferred  on  a central  or  general  government 
must  be  granted  by  the  states,  as  political  corporations,  and  that 
therefore  the  principle  of  the  Union  could  not  be  changed,  what- 
ever addition  it  might  be  expedient  to  make  to  its  authority. 
They  said,  that,  even  if  this  theory  Avere  not  strictly  true,  the 
smaller  states  could  not  safely  unite  A\"ith  the  larger  upon  any 
other  ’ and  especially  that  they  could  not  surrender  their  liberties 
to  the  keeping  of  a majority  of  the  people  inhabiting  all  the 
states,  for  such  a poAver  Avould  inevitably  destroy  the  state  con- 
stitutions. They  Avere  Avilling,  they  said,  to  enlarge  the  poAvers 
of  the  federal  government ; AAdlling  to  provide  for  it  the  means  of 
compelling  obedience  to  its  laAvs ; Avilling  to  hazard  much  for  the 
general  Avelf are.  But  they  could  not  consent  to  place  the  very 
existence  of  their  local  governments,  Avith  all  their  capacity  to 
protect  the  distinct  interests  of  the  people,  and  all  their  peculiar 
fitness  for  the  administration  of  local  concerns,  at  the  mercy  of 


’ Yates’s  Minutes,  Elliot,  I.  433. 


CONSTITUTIONAL  HISTORY. 


392 

great  communities,  whose  policy  might  overshadow  and  whose 
power  might  destroy  them. 

To  the  claim  of  political  equality  as  between  a citizen  of  the 
largest  and  a citizen  of  the  smallest  state  in  the  Union  they  op- 
posed the  doctrine  that  in  his  own  state  every  citizen  is  equal 
Avith  every  other,  and  holds  such  rights  and  liberties,  and  so  much 
political  power,  as  the  state  may  see  fit  to  bestow  upon  him ; but 
that,  Avhen  separate  states  enter  into  political  relations  Avith  each 
other  for  their  common  benefit,  it  is  among  the  states  themselves 
that  the  equality  must  prevail,  because  states  can  only  be  parties 
to  a compact  upon  a footing  of  natural  equality,  just  as  individ- 
uals are  supposed  to  enter  society  with  equal  natural  rights. 
This  doctrine,  they  said,  Avas  especially  n-ecessary  to  be  applied 
between  states  of  very  unequal  magnitudes.  If  applied,  it  Avquld 
render  unnecessary  the  division  of  the  legislative  body  into 
two  chambers ; Avould  dispense  with  any  but  a supreme  judicial 
tribunal ; and  Avould  admit  of  a ratification  by  the  states  in  Con- 
gress, Avithout  raising  the  hazardous  and  doubtful  question  of  a 
direct  resort  to  the  people,  Avhose  power  to  act  independently  of 
their  state  governments  Avas  by  some  strenuously  denied. 

These,  in  substance,  were  the  principles  noAv  brought  into  di- 
rect collision,  urged  under  a great  variety  of  forms,  and  recurring 
upon  the  successive  details  of  the  Constitution,  as  its  foimation 
proceeded,  and  pressed  Avith  equal  earnestness  and  equally  firm 
convictions  of  duty  on  both  sides.  I confess  that  it  does  not 
seem  to  me  important,  if  it  be  practicable,  to  decide  Avhich  party 
was  theoretically  correct.  A great  deal  of  the  reasoning  on  both 
sides  Avas  speculative,  and  it  is  not  easy  to  deny  some  of  the 
chief  propositions  which  Avere  maintained  on  the  one  side  and  the 
other.  We  are  too  apt,  perhaps,  to  judge  of  the  real  soundness  of 
the  opinions  held  by  opposite  parties  to  the  first  compromise  of 
the  Constitution  by  the  subsequent  history  and  success  of  the 
government,  and  by  the  views  and  feelings  Avhich  Ave  entertain  of 
that  history  and  that  success.  AVhereas,  in  truth,  if  we  place 
ourselves  at  the  point  Avhere  the  framers  of  the  Constitution  stood 
at  the  time  Ave  are  examining,  Ave  shall  find  that,  Avith  the  excep- 
tion of  the  influence  due  to  one  or  two  governing  facts  of  previous 
history,  it  was  theoretically  as  correct  to  contend  for  a purely 
federal'as  for  a purely  national  government.  Almost  everything 


DIVISION  BETWEEN  THE  STATES.  393 

depends  upon  tlie  object  towards  which  they  were  to  reason ; and 
theietoie  the  [)reniises  were  in  a considerable  deg’ree  open  to  an 
arbitrary  choice.  If  the  object  was  to  establish  a government, 
against  the  exercise  of  whose  legitimate  powers  state  legislation 
could  not  possibly  be  exerted,  some  higher  authority  than  that  of 
the  state  governments  must  be  resorted  to ; and  the  reasoning 
which  tended  to  prove  the  existence  of  that  authority  and  the 
practicability  of  invoking  it,  and  the  danger  of  any  other  kind  of 
government,  conies  logically  and  consistently  in  support  of  the 
great  purpose  to  be  attained.  If,  however,  from  an  honest  fear 
for  the  safety  of  local  interests,  the  purpose  was  to  have  a govern- 
ment that  would  not  seriously  diminish  the  powers  of  the  states, 
but  would  leave  them  with  always  unimpaired  sovereignties, 
capable  of  resisting  the  measures  of  the  central  power,  then  the 
states  were  certainly  competent  and  sufficient  to  the  formation 
of  such  a sj-stem,  and  the  reasoning  which  placed  them  in  the 
light  of  parties  to  a social  compact  was  theoretically  true.  On 
the  one  side,  it  was  believed  that  a government  formed  bv  the 
states  upon  the  principle  of  federal  equality  would  be  destructive 
of  the  powers  of  the  general  government,  whatever  those  powers 
might  be.  On  the  other  side,  it  was  considered  that  the  principle 
of  governing  by  a democratic  majority  of  the  people  of  all  the 
states  Avould  make  those  powers  too  formidable  for  the  safety  of 
the  state  constitutions.  According  to  the  force  we  may  assign  to 
the  one  or  the  other  tendency,  the  reasoning  on  either  side^  Avill 
appear  to  us  to  be  almost  equally  correct. 

But  there  Avere,  as  I haA^e  said,  one  or  tAA-o  facts  of  preAuous 
history  Avhich  gaA^e  the  advocates  of  a national  government  a 
great  adA-antage  oA^er  their  opponents,  and  Avent  far  toAA-ards  set- 
tling the  real  merits  of  the  two  opposite  systems.  A federal  sys- 
tem had  been  tried,  and  had  broken  down  in  complete  prostration 
of  all  the  appropriate  energies  and  functions  of  goA^ernment.  The 
advocates  of  the  opposite  system,  therefore,  could  point  to  all  the 
failures  and  all  the  defects  of  the  Confederation,  in  proof  of  the 
reasoning  AAffiich  they  employed.  In  addition  to  this  they  could 
adduce  the  same  general  tendency  in  all  former  confederacies  of 
the.  same  nature.  But  no  experiment  had  been  made  by  the  peo- 
ple of  the  American  states  of  a government  founded  expressly  on 
the  national  character  and  relations  of  their  inhabitants ; and  if 


394:  CONSTITUTIONAL  HISTORY. 

the  merits  of  such  a government  were  now  only  to  be  maintained 
by  tlieoretical  reasoning,  on  tlie  other  hand  it  had  not  suffered 
the  injury  of  acknowledged  defeat. 

The  difficulty  in  the  way  of  its  adoption  was  its  supposed 
tendency  to  absorb,  and  perhaps  to  annihilate,  the  sovereignties  of 
the  states.  The  advocates  of  the  Virginia  plan  were  called  upon 
to  show  how  the  general  sovereignty  and  jurisdiction  which  they 
proposed  to  give  to  their  system  could  consist  with  a consider- 
able, though  subordinate,  jurisdiction  in  the  states.  One  of  its 
moderate  and  candid  opponents^  declared  that,  if  this  could  be 
shown,  the  objections  to  it  ought  to  be  surrendered ; but  if  not, 
he  thought  that  those  objections  must  have  their  full  force.  But, 
from  the  very  nature  of  the  case,  that  which  had  not  been  demon- 
strated by  experience  could  rest  only  upon  opinion  ; and  while  the 
Virginia  system  made  no  other  provision  for  state  defence  against 
encroachments  of  the  general  government  than  such  as  might  be 
found  in  the  election  by  the  state  legislatures  of  the  national 
Senate,  the  apprehensions  of  the  smaller  states  could  not  be 
satisfied,  however  admirable  the  theory,  and  however  able  might 
be  the  reasoning  by  which  it  was  supported. 

Let  the  reader,  then,  as  he  pursues  the  history  of  this  conflict 
between  the  opposing  interests  of  the  two  classes  of  states,  and 
observes  how  strenuously  the  different  theories  were  maintained, 
until  victory  became  impossible  on  either  side,  note  the  danger  of 
adhering  too  firmly  to  mere  theoretical  principles  in  matters  of 
government.  He  will  see  the  impressive  spectacle  of  states  as- 
sembled for  the  formation  of  some  system  capable  of  answering 
the  exigencies  of  their  situation ; he  will  see  how  rapidly  a differ- 
ence of  local  interests  developed  the  most  opposite  theories,  and 
how  profoundly  those  theories  were  discussed ; and  he  will  see 
this  conflict  carried  on  for  days,  and  even  for  weeks,  with  all  the 
sincerity  that  interest  lends  to  conviction,  and  all  the  tenacity 
that  conviction  can  produce,  until  at  last  the  whole  discussion 
leads  to  the  probable  failure  of  the  purpose  for  which  the  assem- 
bly had  been  instituted.  He  will  then  see  an  amalgamation  of 
the  two  systems,  which  in  their  integrity  were  irreconcilable,  and 
will  witness  the  first  introduction  of  that  mode  of  adjusting  oppo- 


1 Dr.  Johnson  of  Connecticut. 


TWO  LEGISLATIVE  CHAMBERS.  395 

site  interests  and  conflicting  theories  of  government  wliicli  lies 
at  the  basis  of  the  Constitution  of  the  United  States,  and  which 
alone  can  furnish  a safe  foundation  on  which  to  unite  the  destinies 
and  wants  of  separate  communities  possessed  of  distinct  political 
organizations  and  rights. 

The  Convention  had  received  the  report  of  the  committee  of 
the  whole  on  the  19th  of  June.  From  that  da,y  until  the  5th  of 
July  the  struggle  was  continued,  commencing  with  the  proposi- 
tion which  affirmed  the  division  of  the  legislative  department  of 
the  go\  eminent  into  two  branches.  Although,  such  an  arrange- 
ment did  not  necessarily  involve  the  principle  of  national  and 
popular  representation,  it  was  opposed  as  unnecessary  by  those 
who  desired  to  retain  the  system  of  representation  by  ^states,  and 
ho  therefore  intended  to  preserve  the  existing  organization  of 
the  Congress.  Still  the  needful  harmony  and  completeness  of 
the  scheme,  according  to  the  genius  of  the  Anglo-American  lib- 
erty, required  this  division  of  the  legislature. 

Doubtless  a single  council  or  chamber  can  promulgate  decrees 
and  enact  laws ; but  it  had  never  been  the  habit  of  the  people  of 
America,  as  it  never  had  been  the  habit  of  their  ancestors  for  at 
least  a period  of  somewhat  more  than  five  centuries,  to  regard  a 
single  chamber  as  favorable  to  liberty  or  to  wise  legislation.' 
The  separation  into  two  chambers  of  the  lords  spiritual'and  tem- 
poral, and  the  commons,  in  the  English  Constitution,  does  not 
seem  to  have  originated  in  a difference  of  personal  rank,  so  much 
as  in  their  position  as  separate  estates  of  the  realm.  All  the 
orders  might  have  voted  promiscuously  in  one  house,  and  just  as 
effectually  signified  the  assent  or  dissent  of  Parliament  to  any 
measure  proposed.^  But  the  practice  of  making  the  assent  of 


‘ Mr.  Hallam  has  traced  tlie  present  constitution  of  Parliament  to  the  sanc- 
tion of  a statute  in  the  loth  of  Edward  II.  (1322),  which  lie  says  recognizes  it  as 
already  standing  upon  a custom  of  some  lengtli  of  time.  Const.  History,  I.  5. 

^ Mr.  Hallam  does  not  concur  in  what  he  says  has  been  a prevailing  opinion, 
that  Parliament  was  not  divided  into  two  houses  at  the  first  admission  of  the 
commons.  That  they  did  not  sit  in  separate  cliambers  proves  nothing;  for  one 
body  may  have  sat  at  one  end  of  Westminster  Hall,  and  the  other  at"t,he  oppo- 
site end.  But  he  thinks  that  they  were  never  intermingled  in  voting;  and,  in 
proof  of  this,  he  adduces  the  fact  that  their  early  grants  to  the  king  were  sepa- 
rate, and  imply  distinct  grantors,  who  did  not  intermeddle  with  each  other’s 


39G 


CONSTITUTIONAL  HISTORY. 


Parliament  to  consist  in  the  concurrent  and  separate  action  of 
the  two  estates,  though  difficult  to  be  traced  to  its  origin  in  any 
distinct  purpose  or  cause,  became  confirmed  by  the  growing  im- 
portance of  the  commons,  by  their  jealousy  and  vigilance,  and  by 
the  controlling  ]msition  which  they  finally  assumed.  As  Pailia- 
ment  gradually  proceeded  to  its  present  constitution,  and  the 
separate  rights  and  privileges  of  the  two  houses  became  estab- 
lished, it  was  found  that  the  practice  of  discussing  a measure  in 
two  assemblies,  composed  of  different  persons,  holding  their  seats 
by  a different  tenure  and  representing  different  orders  of  the 
state,  was  in  the  highest  degree  conducive  to  the  security  of  the 
subject  and  to  sound  legislation.' 

So  fully  was  the  conviction  of  the  practical  convenience  and 
utility  of  two  chambers  established  in  the  Anglican  mind  that, 
when  representative  government  came  to  be  established  in  the 
British  North  American  colonies,  although  the  original  reason  for 
the  division  ceased  to  be  applicable,  it  was  retained  for  its  inci- 
dental advantages.  In  none  of  these  colonies  was  there  any  dif- 
ference of  social  condition,  or  of  political  privilege  or  power,  rec- 
ognized in  the  system  of  representation ; and  as  there  were,  there- 
fore, no  separate  estates  or  orders  among  the  people,  requiring  to 
be  protected  against  each  other’s  encroachments,  or  holding  differ- 
ent relations  to  the  crown,  we  cannot  attribute  the  adherence  to 
the  system  of  two  chambers  on  the  part  of  those  who  solicited 
and  received  the  privilege  of  establishing  these  colonial  govern- 
ments to  anything  but  their  belief  in  its  practical  advantages  foi 
the  purposes  of  legislation.  Still  less  can  we  suppose  that  after 
the  Kevolution,  and  when  there  no  longer  e.xisted  any  such  motive 
as  mio-ht  have  influenced  the  crown  in  modelling  the  colonial  after 
the  imperial  institutions,  to  a certain  extent,  the  people  of  these 
states  should  have  perpetuated  in  their  constitutions  the  principle 


proceedino-s.  He  further  shows  that  in  tl,c  11th  Edward  I.  the  commons  sat  ,n 
one  nlace"and  the  lords  in  another;  and  that  in  tlie  8th  Edward  II.  the  com- 
mons presented  a separate  petition  or  complaint  to  the  Idng^and  the  same 
thing  occurred  in  1 Edward  III.  He  infers  from  the  rolls  of 
the  houses  were  divided  as  they  are  at  iirescnt,  in  the  8th,  flth,  and  19th  Ednau 
II.  See  the  very  valuable  Chapter  VIII.,  on  the  English  Constitution,  in  Hal- 
lam’s  Middle  Ages,  III.  342. 

1 See  on  this  subject  Lieber  on  Civil  Liberty,  I.  209,  edit.  18o3. 


H r:  R E S E N 1'  A 'f  I O N IN  T 1 1 E S E N A T E . oq 

of  a division  of  tlic  logislatiiro  into  two  eliainbers  for  any  otlier 
jnirposc  tliaii  to  secure  the  practical  benefits  which  tlioy  and  tlieir 
ancestoi’s  had  always  found  to  flow  from  it. 

Only  tliree  exceptions  to  this  practice  existed  in  America  at 
the  time  of  the  formation  of  the  Constitution.  They  were  the 
legislatures  of  the  states  of  Pennsylvania  and  Georgia,  and  the 
Congress  of  the  Confederation. 

But  the  Congress  being  in  fact  only  an  assembly  of  deputies 
from  confederated  states,  the  means  scarcely  existed  for  the  ap- 
plication of  the  principle  so  familiar  in  the  legislatures  of  most 
of  the  states  themselves.  As  a new  government  was  now  to  be 
formed,  whose  theoretical  and  actual  powers  were  to  be  essentially 
different,  an  opportunity  was  afforded  for  the  ancient  and  favorite 
construction  of  the  legislative  department.  The  proposal  was  re- 
sisted, not  because  it  was  doubted  that,  in  a government  of  direct 
legislative  authority  in  which  the  people  are  themselves  to  be  rep- 
resented, the  system  of  two  chambers  is  practically  the  best,  but 
because  those  who  opposed  its  introduction  denied  the  propriety 
of  attempting  to  establish  a government  of  that  kind.  The  states 
of  New  York,  New  Jersey,  and  Delaware,  therefore,  recorded  their 
votes  against  such  a division  of  the  legislature,  and  the  vote  of 
Maryland  was  divided  upon  the  question.' 

The  reader  will  observe,  however,  that,  in  its  present  aspect, 
Uiere  was  a chasm  m the  Virginia  plan  which  to  some  extent 
justifies  the  opposition  of  the  minority  to  the  system  of  two  leo-is- 
lative  chambers.  According  to  that  plan  the  people  of  the  states 
were  to  be  represented  in  both  chambers  in  proportion  to  their 
numbers.  But  as  there  were  no  distinct  orders  among  the  people 
to  furnish  a different  basis  for  the  two  houses,  the  system  must 
either  be  a mere  duplicate  representation  of  the  whole  people,  as 
It  IS  m the  state  constitutions  generally,  or  some  artificial  basis 
must  be  provided  for  one  house,  to  distinguish  it  from  the  other 
and  to  furnish  a check  as  between  the  two.  In  a republican  gov- 
ernment, and  m a state  of  society  where  property  is  not  entailed 
and  distinctions  of  personal  rank  cannot  exist,  such  a basis  is  not 
easily  found ; and  if  found,  is  not  likely  to  be  stable  and  effectual. 
Ihe  happy  expedient  of  selecting  the  states  as  the  basis  of  repre- 

’ Connecticut  upon  tiiis  question  voted  with  the  majority. 


398 


CONSTITUTIONAL  HISTORY. 


sentation  in  the  Senate,  which  had  not  yet  been  agreed  upon,  and 
which  was  resorted  to  as  an  adjustment  of  a serious  conflict  be- 
tween two  opposite  principles  of  government,  has  furnished  a 
really  different  foundation  for  the  two  branches,  as  distinct  as  the 
separate  representation  of  the  different  orders  in  the  l>ritish  con- 
stitution. It  has  thus  secured  the  incidental  advantages  of  two 
chambers,  without  resorting  to  those  fluctuating  or  arbitrary  dis- 
tinctions among  the  people  which  can  alone  afford,  in  such  a coun- 
try as  ours,  even  an  ostensible  difference  of  origin  for  legislative 
bodies. 

The  same  struggle  which  had  been  maintained  upon  this  ques- 
tion was  continued  through  all  the  votes  taken  upon  the  mode  of 
electing  the  members  of  the  two  branches,  and  upon  their  tenure 
of  office.  It  is  not  necessary  here  to  rehearse  the  details  of  these 
proceedings ; the  result  was,  that  the  members  of  the  first  branch 
of  the  legislature  were  to  be  chosen  by  the  people  of  the  states 
for  a period  of  two  years,  and  to  be  twenty-five  years  of  age,  while 
the  members  of  the  second,  or  senatorial  branch,  were  to  be  chosen 
by  the  state  legislatures  for  a period  of  six  years,  and  to  be  thirty 
years  of  age.  The  states  of  Pennsylvania  and  Virginia  voted 
against  the  election  of  senators  by  the  legislatures  of  the  states, 
because  it  was  still  uncertain  whether  an  equality  or  a ratio  of 
representation  would  finally  prevail  in  that  branch,  and  the  elec- 
tion by  the  legislatures  was  considered  to  have  a tendency  to  the 
adoption  of  an  equality.' 

At  length  the  sixth  resolution,  which  defined  the  powers  of 
Congress,  and  the  seventh  and  eighth,  Avhich  involved  the  funda- 
mental point  of  the  suffrage  in  the  two  branches,  were  reached.^ 
The  subject  of  the  powers  of  Congress  was  postponed,  and  the 
' question  was  stated  on  the  rule  of  suffrage  for  Uie  first  branch, 
which  the  resolution  declared  ought  to  be  according  to  an  equita- 
ble ratio.  In  the  great  debate  which  ensued,  Madison,  Hamilton, 
Gorham,  Keed,  and  Williamson  combated  the  objections  of  the 
smaller  states,  while  Luther  Martin,  with  his  accustomed  warmth, 
resisted  the  introduction  of  the  new  principle.  The  discussion  in- 
volved on  both  sides  a repetition  of  the  arguments  previously  em- 
ployed ; but  some  of  the  views  presented  are  of  great  importance, 


Madison,  Elliot,  V.  240. 


2 June  28tli. 


HAMILTON'S  WARNINGS. 


3i)!» 

especially  those  taken  by  l\ra(lison  and  Hamilton,  of  the  situation 
in  which  the  smaller  states  must  be  jilaced,  if  a constitution  should 
not  be  formeil  and  adopted  containing  a just  distribution  of  politi- 
cal power  among  the  wliolo  jieojile  of.  the  country,  creating  thereby 
a government  of  sulficient  energy  to  jirotect  each  and  all  of  the 
states  against  foreign  powers,  against  the  influence  of  the  larger 
members  of  the  Confederacy,  and  against  the  dangers  to  be  appre- 
hended from  their  own  governments. 

Let  each  state,  said  Mr.  Madison,  depend  on  itself  for  its  secur- 
ity, m a position  of  independence  of  the  Union,  and  let  apprehen- 
sions arise  of  dangers  from  distant  powers,  or  from  neighboring 
states,  and  from  their  present  languishing  condition  all  the  stated 
large  as  well  as  small,  would  be  transformed  into  vigorous  and 
high-toned  governments,  with  an  energy  fatal  to  liberty  and  peace. 
The  w'eakness  and  jealousy  of  the  smaller  states  would  quickly  in- 
troduce some  regular  military  force  against  sudden  danger  from 
their  powerful  neighbors ; the  example  would  be  followed,  would 
soon  become  universal,  and  the  means  of  defence  against  external 
danger  wmuld  become  the  instruments  of  tyranny  at  home.  These 
consequences  were  to  be  apprehended,  whether  the  states  should 
run  into  a total  separation  from  each  other,  or  into  partial  con- 
federacies. Either  event  would  be  truly  deplorable,  and  those 
who  might  be  accessory  to  either  could  never  be  forgiven  by  their 
country  or  by  themselves.' 

To  these  consequences  of  a dissolution  of  the  Union,  Hamilton 
added  another,  equally  serious.  Alliances,  he  declared,  must  be 
formed  with  different  rival  and  hostile  nations  of  Europe,  who 
would  seek  to  make  us  parties  to  their  own  quarrels.  The  repre- 
sentatives of  foreign  nations  having  American  dominions  betrayed 
the  utmost  anxiety  about  the  result  of  that  meeting  of  the  states. 
It  had  been  said  that  respectability  in  the  eyes  of  Europe  was  not 
the  object  at  which  ive  were  to  aim  ; that  the  proper  design  of 
republican  government  was  domestic  tranquillity  and  happiness. 
This  was  an  ideal  distinction.  Ho  government  could  give  us  tran- 
quillity and  happiness  at  home  which  did  not  possess  sufficient 
stability  and  strength  to  make  us  respectable  abroad.  This  was 
the  critical  moment  for  forming  such  a government.  We  should 


’ Mndisoii,  Elliot,  V.  256. 


400 


CONSTITUTIONAL  HISTORY. 

run  evGrv  risk  in  trusting  to  future  amendments.  As  yet,  we  re- 
tain the  habits  of  union.  We  are  weak,  and  sensible  of  our  weak- 
ness. Henceforward  the  motives  would  become  feeble  and  the 
difficulties  greater.  It  was  a miracle  that  they  were  here,  exercis- 
ing their  tranquil  and  free  deliberations  on  the  subject.  It  would 
be  madness  to  trust  to  future  miracles.’ 

But  these  warnings  were  of  no  avail  against  the  settled  deter- 
mination of  those  who  saw  greater  dangers  in  the  establishment 
of  a government  which  was  in  their  view  to  approximate  the  con- 
dition of  the  states  to  that  of  counties  in  a single  state.  The 
principle  of  a proportionate  representation  of  the  populations  of 
the  states  was  just  and  necessary ; but  it  was  now  leading  to  the 
extreme  of  an  entire  separation,  because  it  was  carried  to  the  ex- 
treme of  a full  application  to  every  part  of  the  government.  In 
like  manner  there  was  an  equally  urgent  necessity  for  some  pro- 
vision which  should  receive  the  states  in  their  political  capacity, 
and  on  a footing  of  equality,  as  constituent  parts  of  the  system. 
But  this  principle  was  now  forcing  the  majority  into  the  alterna- 
tive of  a partial  confederacy,  or  of  none  at  all,  because  it  was  in- 
sisted that  the  government  must  be  exclusively  founded  on  it. 
^^■either  party  was  ready  to  adopt  the  suggestion  that  the  two 
ideas,  instead  of  being  opposed,  ought  to  be  combined,  so  that  in 
one  branch  the  people  should  be  represented,  and  in  the  other  the 
states.^  The  consequence  was  that  the  proportionate  rule  of  suf- 
frage for  the  first  branch  was  established  by  a majority  of  one 
state  only and  the  Convention  passed  on,  with  a fixed  and  for- 
midable minority  wholly  dissatisfied,  to  consider  what  rule  should 
be  applied  to  the  Senate. 

The  objects  of  a Senate  were  readily  apprehended.  They 
were,  in  the  firet  place,  that  there  might  be  a second  chamber, 
with  a concurrent  authority  in  the  enactment  of  laws ; secondly, 
that  a greater  degree  of  stability  and  wisdom  might  reside  in  its 
deliberations  than  would  be  likely  to  be  found  in  the  other  branch 


1 Madison,  Elliot,  V.  258. 

2 It  was  made  at  this  stage  by  Dr.  Johnson. 

» The  states  opposed  to  an  equality  of  suffrage  in  the  first  branch  were  Mas- 
sachusetts, Pennsylvania,  Virginia,  North  Carolina,  South  Carolina,  and  Georgia, 
0;  those  in  favor  of  it  were  Connecticut,  New  York,  New  Jersey,  and  Delaware. 
The  vote  of  Maryland  was  divided. 


HEI'UESENTATION  IN  THE  SENATE.  40I 

of  tlic  legislative  department;  and,  thirdly,  that  there  might  be 
some  diversity  of  interest  between  the  two  bodies.  These  <d»jects 
were  to  bo  attained  by  providing  for  the  Senate  a distinct  and 
sejiarato  basis  of  its  own.  If  such  a basis  is  found  among  the  in- 
dividuals composing  a political  society,  it  must  consist  of° the  dis- 
tinctions among  them  either  in  respect  to  social  rank  or  in  respect 
to  property.  AVith  regard  to  the  first,  the  absence  of  all  distinc- 
tions of  rank  rendered  it  impossible  to  assimilate  the  Senate  of  the 
United  States  to  the  aristocratic  bodies  which  were  found  in  other 
governments  possessed  of  two  legislative  chambers.  Property,  as 
held  by  individuals,  might  have  been  assumed  as  the  basis  of  a dis- 
tinct rejiresentation,  if  the  laws  and  customs  of  the  different  states 
had  generally  admitted  of  its  possession  in  large  masses  through 
successive  generations.  But  they  did  not  admit  of  it.  The  gen- 
eral distribution  and  diffusion  of  property  was  the  rule ; its  lineal 
transmission  from  the  father  to  the  eldest  son  was  the  exception. 
Had  the  Senate  been  founded  upon  property,  it  must  have  been 
upon  the  ratio  of  wealth  as  between  the  different  states,  in  the 
same  manner  in  which  the  senatorial  representation  of  counties 
was  arranged  under  the  first  constitution  of  Massachusetts.’  It 
was  very  soon  settled  and  conceded  that  the  states,  as  political 
societies,  must  be  preserved  ; and  if  they  were  to  be  represented 
as  corporations,  or  as  so  many  separate  aggregates  of  individuals, 
they  must  be  received  into  the  representation  on  an  equal  footing’ 
or  according  to  their  relative  weight.  An  inquiry  into  their  rela- 
tive wealth  must  have  involved  the  question,  as  to  five  of  them 
at  least,  whether  their  slaves  were  to  be  counted  as  part  of  that 
wealth.  No  satisfactory  decision  of  this  naked  question  could  ■ 
have  been  had ; and  it  is  to  be  considered  among  the  most  fortu- 
nate of.the  circumstances  attending  the  formation  of  the  Constitu- 
tion, that  this  question  was  not  solved  with  a view  of  founding 
the  Senate  upon  the  relative  wealth  of  the  states.  ° 

Two  courses  only  remained.  The  basis  of  representation  in 
the  Senate  must  either  be  found  in  the  numbers  of  people  inhabit- 
ing the  states,  creating  an  unequal  rejiresentation,  or  the  people 
of  each  state,  regarded  as  one,  and  as  equal  with  the  people  of 
every  other  state,  must  be  represented  by  the  same  number  of 


' Mr.  Baldwin  of  Georgia  suggested  this  model. 


I.— 26 


CONSTITUTIONAL  HISTORY. 


402 

voices  and  votes.  The  former  was  the  plan  insisted  on  by  the 
friends  and  advocates  of  the  national”  system;  the  latter  was 
the  great  object  on  which  the  minority  now  rallied  all  their 
strength. 

Tlie  debate  was  not  long  protracted ; but  it  was  marked  with 
an  energy,  a firmness,  and  a warmth  on  both  sides  which  reveal 
the  nature  of  the  peril  then  hanging  over  the  unformed  institu- 
tions whose  existence  now  blesses  the  people  of  America.  As 
the  delegations  of  the  states  approached  the  decision  of  this 
critical  question,  the  result  of  a separation  became  apparent,  and 
with  it  phantoms  of  coming  dissension  and  strife,  of  foreign  alli- 
ances and  adverse  combinations,  loomed  in  the  future.  Keason 
and  argument  became  powerless  to  persuade.  Patriotism,  for  a 
moment,  lost  its  sway  over  men  who  would  at  any  time  have 
die(Pfor  their  common  country.  Aot  mutterings  only,  but  threats 
even  were  heard  of  an  appeal  to  some  foreign  ally , by  the  smaller 
states,  if  the  larger  ones  should  dare  to  dissolve  the  Confederacy 
by  insisting  on  an  unjust  scheme  of  government. 

Ellsworth,  of  Connecticut,  in  behalf  of  the  minority,  offered 
to  accept  the  proportional  representation  for  the  first  branch,  if 
the  equality  of  the  states  were  admitted  in  the  second,  thus  mak- 
ing the  government  partly  national  and  partly  federal.  It  would 
be"’ vain,  he  said,  to  attempt  any  other  than  this  middle  ground. 
Massachusetts  was  the  only  Eastern  state  that  would  listen  to  a 
proposition  for  excluding  the  states,  as  equal  political  societies, 
from  an  equal  voice  in  both  branches.  The  others  would  risk 
every  consequence  rather  than  part  with  so  dear  a right.  An 
attempt  to  deprive  them  of  it  was  at  once  cutting  the  body  of 
America  in  two. 

At  this  moment,  foreseeing  the  probability  of  an  equal  division 
of  the  states  represented  in  the  Convention,  one  of  the  New  Jersey 
members ' proposed  that  the  president  should  write  to  the  execu- 
tive of  New  Hampshire,  to  request  the  attendance  of  the  deputies 
who  had  been  chosen  to  represent  that  state,  and  who  had  not  yet 
taken  seats.  Two  states  only  voted  for  this  motion,^  and  the  dis- 
cussion proceeded.  Madison,  Wilson,  and  King,  with  gieat  ear- 
nestness, resisted  the  compromise  proposed  by  Ellsworth,  and  when 


1 David  Brearly. 


® New  York  and  New  Jersey. 


403 


CONSEQUENCES  OF  FAILUllPl 

the  vote  was  iiniilly  taken,  five  states  were  found  to  be  in  favor  of 
an  equal  rei)rescntation  in  the  senate,  five  were  opposed  to  it,  and 
the  vote  of  (feorg-ia  was  divided.’ 

Ihus  was  this  assembly  of  great  and  patriotic  men  brought 
finally  to  a stand,  by  the  singular  urgency  with  which  opposite 
theories,  springing  from  local  interests  and  objects,  were  sought 
to  be  pressed  into  a constitution  of  government  that  was  to\e 
accejned  by  communities  widely  differing  in  extent,  in  numbers, 
ami  in  wealth,  and  in  all  that  constitutes  political  power,  and 
V Inch  were  at  the  same  time  to  remain  distinct  and  separate 
states.  As  we  look  back  to  the  possibility  of  a failure  to  create  a 
constitution,  and  try  to  divest  ourselves  of  the  identity  which  the 
success  of  that  experiment  has  given  to  our  national  life,  the  im- 
agination wanders  over  a dreary  waste  of  a hundred  years,  which 
it  can  only  fill  with  strange  images  of  desolation.  That  the  ad- 
ministration of  Washington  should  never  have  existed  ; that  Mar- 
shall should  never  have  adjudicated,  or  Jackson  conquered;  that 
the  arts,  the  commerce,  the  letters  of  America  should  not  have 
taken  the  place  which  they  hold  in  the  affairs  of  the  world ; that 
instead  of  this  great  Union  of  prosperous  and  powerful  republics, 
iiiade  one  prosperous  and  powerful  nation,  history  should  have 
had  nothing  to  show  and  nothing  to  record  but  border  warfare 
and  the  conflicts  of  worn-out  communities,  the  sport  of  the  old 
clashing  policies  of  Europe ; that  self-government  should  have  be- 
come one  of  the  exploded  delusions  with  which  mankind  have 
successively  deceived  themselves,  and  republican  institutions  have 

’ The  questimi  was  put  upon  Ellswortli’s  motion  to  allow  the  states  an  equal 
representation  in  the  Senate.  Tlie  vote  stood,  Connecticut,  New  York,  New 
Jersey,  Delaware,  Maryland,  «?/,  5 ; Massaclnisetts,  Pennsylvania,  Virginia,  North 
Carolina,  South  Carolina,  5;  Georgia  divided.  The  person  who  divided  the 
vote  of  Georgia,  and  thus  prevented  a decision  which  must  have  resulted  in  a 
disruption  of  the  Convention,  was  Abraham  Baldwin.  We  have  no  account  of 
tlie  motives  with  which  he  cast  this  vote,  except  an  obscure  suggestion  by  Luther 
Martin,  which  is  not  intelligible.  (Elliot,!.  35G.)  Baldwin  was  a very  wise  and 
a very  able  man.  He  was  not  in  favor  of  Ellsworth’s  proposition,  but  he  prob- 
ably saw  the  consequences  of  forcing  the  minority  states  to  the  alternatives  of 
recmving  what  they  regarded  as  an  unjust  and  unsafe  system,  or  of  quitting  the 
Union.  By  dividing  the  vote  of  Ids  state  he  prevented  this  issue,  although  he 
also  made  it  proliable  tliat  the  Convention  must  be  dissolved  without  the  adop- 
tion of  any  plan  whatever. 


404:  CONSTITUTIONAL  HISTORY.. 

been  made  only  another  name  for  anarchy  and  social  disorder- 
all  these  things  seem  at  once  inconceivable  and  pt  probable— at 
onoe  the  fearful  conjurings  of  fancy  and  the  inevitable  deductions 

of  reason.  . , ^ u f i 

We  know  not  what  combinations,  what  efforts,  might  have  fol- 
lowed the  separation  of  that  convention  of  American  statesmen, 
without  having  accomplished  the  work  for  which  they  had  been 
assembled.  We  do  know  that,  if  they  could  not  have  succeeded 
in  framing  and  agreeing  upon  a system  of  government  capable  of 
commending  itself  to  the  free  choice  of  the  people  of  their  respec- 
tive states,  no  other  body  of  men  in  this  country  could  have  done 
it.  We  know  that  the  Confederation  was  virtually  at  an  end ; 
that  its  power  was  exhausted,  although  it  still  held  the  nominal 
seat  of  authority.  The  Union  must  therefore  have  been  dissolved 
into  its  component  parts  but  for  the  wisdom  and  conciliation  of 
those  who,  in  their  original  earnestness  to  secure  a perfect  theory , 
had  thus  encountered  an  insuperable  obstacle  and  brought  about 
a great  hazard.  I have  elsewhere  said  that  these  men  were  capa- 
ble of  the  highest  of  the  moral  virtues— that  their  magnanimity 
was  as  great  as  their  intellectual  acuteness  and  strength.  Let  us 
turn  to  the  proof  on  which  rests  their  title  to  this  distinction. 


CHAPTEE  XXIII. 

First  Grand  Compromises  of  the  Constitution. — Population  of 
THE  States  Adopted  as  the  Basis  op  Ebpresentation  in  the 
House.— Rule  foe  Computing  the  Slaves.— Equality  of  Rep- 
resentation OF  THE  States  Adopted  for  the  Senate. 

As  the  states  were  now  exactly  divided  on  the  question 
wliether  there  should  be  an  equality  of  votes  in  the  second  branch 
of  the  legislature,  some  compromise  seemed  to  be  necessary,  or 
the  effort  to  make  a constitution  must  be  abandoned.  A conver- 
sation as  to  what  was  expedient  to  be  done,  resulted  in  the  ap- 
pointment of  a committee  of  one  member  from  each  state,  to  de- 
vise and  report  some  mode  of  adjusting  the  whole  system  of  repre- 
sentationj  " ^ 

According  to  the  Virginia  plan,  as  it  then  stood  before  the 
Convention,  the  right  of  suffrage  in  both  branches  was  to  be  upon 
some  equitable  ratio,  in  proportion  to  the  whole  number  of  free 
inhabitants  in  each  state,  to  which  three  lifths  of  all  other  persons 
except  Indians  not  paying  taxes,  were  to  be  added.  Xothing  had 
been  done  to  fix  the  ratio  of  representation ; and  although  the 
principle  of  popular  representation  had  been  affirmed  by"a  ma- 
jority of  the  Convention  as  to  the  first  branch,  it  had  been  rejected 
as  to  the  second  by  an  equally  divided  vote  of  the  states.  The 
whole  subject,  therefore,  was  now  sent  to  a committee  of  compro- 
mise, who  held  it  under  consideration  for  three  days." 

The  same  struggle  which  had  been  carried  on  in  the  Conven- 
tion was  renewed  in  the  committee ; the  one  side  contendino-  for 
an  inequality  of  suffrage  in  both  branches,  the  other  for  an  equal- 


' Tlie  committee  consisted  of  Gerry,  Ellsworth,  Yates,  Patterson.  Franklin. 
Bedford,  :Uartin,  Mason,  Davie,  Rutledge,  and  Baldwin.  ’ 

2 The  committee  was  appointed  on  the  2d  of  July,  and  made  their  report  on 
the  5th.  Tha  Convention,  in  the  interval,  transacted  no  business. 


4QQ  CONSTITUTIONAL  HISTORY. 

itv  in  both.  Dr.  Franklin  at  length  gave  way,  and  proposed  that 
the  representation  in  the  first  branch  should  be  according  o a 
fixed  ratio  of  the  inhabitants  of  each  state,  computed  according 
to  the  rule  already  agreed  upon,  and  that  in  the  second  branc 
each  state  should  have  an  equal  vote.  The  members  of  the  large 
states  reluctantly  acquiesced  in  this  arrangement;  the  members 
of  the  smaller  states,  with  one  or  two  exceptions,  considered  their 
point  gained.  When  the  report  came  to  be  made,  it  was  found 
that  the  committee  had  not  only  agreed  upon  this  as  a compro- 
mise, but  that  they  had  made  a distinction  of  some  importance 
between  the  powers  of  the  two  branches,  by  confining  to  the  first 
branch  the  power  of  originating  all  bills  for  raising  or  appropriat- 
ing money  and  for  fixing  the  salaries  of  officers  of  the  goiein- 
„L,»/by  provMinS  .l.bt  -I,  bill,  ,l.ould  no.  b.  ,1.«1  » 
amended  in  the  second  branch.  This  was  intended  for  a conces- 
sion by  the  smaller  states  to  the  larger.'  The  ratio  of  represent 
tion  in  the  House  was  fixed  by  the  committee  at 
every  forty  thousand  inhabitants,  in  which  three  fifths  of  the 
slaves  were  to  be  computed  ; each  state  not  possessing  that  num- 
_^er  of  inhabitants  to  be  allowed  one  member.  The  number  of 

senators  was  not  designated.  t i 

This  arrangement  was,  upon  the  whole,  reasonable  and  equita- 
ble. It  balanced  the  equal  representation  of  the  states  m tlie 
Seriate  against  the  popular  representation  in  the  House,  anc  i^ 
gave  to  the  larger  states  an  important  influence  over  the  appro- 
priations of  money  and  the  levying  of  taxes.  Nor  can  the  admis- 
lion  of  the  slaves,  in  some  proportion,  into  the  rule  of  represent^ 
tion,  be  justly  considered  as  an  improper  concession,  m a syste 
in  which  the  separate  organizations  of  the  states  were  to  be  re- 
tained,<ind  in  which  the  states  were  to  be  represented  in  propor- 
tion to  their  respective  populations. 

The  report  of  the  committee  had  recommended  that  this  plan 
should  be  taken  as  a whole;  but  as  its  several  features  were  dis- 
tasteful to  different  sections  of  the  Convention,  and  almost  a 1 
parties  were  disappointed  in  the  result  arrived  at  by  the  com^mi  - 
tee  the  several  parts  of  the  plan  became  at  once  separate  subjec  . 
oTdiscussion.  In  the  first  place,  the  friends  of  a pure  system  of 


^ See  further  as  to  this  exclusive  power  of  the  House,  post. 


APPORTIONMENT  OF  REPRESENTATIVES.  407 

popular  representation  in  both  branches  objected  to  the  provision 
concerning  money  and  appropriation  bills,  as  being  no  concession 
on  the  part  of  the  smaller  states,  and  as  a useless  restriction.’  It 
therefore,  in  their  view,  left  in  force  all  their  objections  against 
allowing  each  state  an  equal  voice  in  the  Senate.  But  it  was 
voted  to  retain  it  in  the  report,"  and  the  equal  vote  of  the  states 
in  the  second  branch  was  also  retained.^ 

The  scale  of  apportionment  of  representatives,  recommended 
in  the  report  of  the  committee,  was  also  objected  to  on  various 
grounds.  It  was  said  that  a mere  representation  of  persons  was 
not  what  the  circumstances  of  the  case  required;  that  propertv 
as  well  as  persons  ought  to  be  taken  into  the  account  in  order  to 
obtain  a just  index  of  the  relative  rank  of  the  states.  It  was  also 
urged  that,  if  the.  system  of  representation  were  to  be  settled  on 
a ratio  confined  to  the  population  alone,  the  new  states  in  the 
West  would  soon  equal,  and  probably  outnumber,  the  Atlantic 
States,  and  thus  the  latter  would  be  in  a minority  forever.  For 
these  reasons  the  subject  of  apportioning  the  representatives  was 
recommitted  to  five  members,'’  who  subsequently  proposed  a scheme 
by  which  the  first  House  of  Kepresentatives  should  consist  of  fifty- 
six  members,  distributed  among  the  states  upon  an  estimate  of 
their  present  condition,'’  and  authorizing  the  legislature,  as  future 
circumstances  might  require,  tojnerease  the  number  of  representa- 
tives, and  to  distribute  them  among  the  states  upon  a compound 
ratio  of  their  wealth  and  the  numbers  of  their  inhabitants.®  The 
latter  part  of  this  proposition  was  adopted,  but  a new  and  differ- 
ent apportionment,  of  sixty -five  members  for  the  first  meeting 
of  the  legislature,  was  sanctioned  by  a large  vote  of  the  states. 


1 Madison,  Butler,  Gouverneur  Morris,  and  Wilson. 

2 Five  states  voted  to  retain  it,  three  voted  against  it,  and  three  were  divided. 
This  was  treated  as  an  affirmative  vote.  Elliot,  V.  255. 

Connecticut,  New  York,  New  Jersey,  Delaware,  Maryland,  North  Carolina, 
«2/,6;  Pennsylvania,  Virginia,  South  Carolina,  no,  3;  Massachusetts,  Georrda  di- 
vided. Il)id.,  285,  286.  ® ’ 

^ Gouverneur  Morris,  Gorham,  Randolph,  Rutledge,  and  King. 

® They  gave  to  New  Hampshire,  2 ; Massachusetts,?;  Rhode  Island,  1 ; Con- 
necticut, 4;  New  York,  5 ; New  Jersey,  3;  Pennsylvania,  8 ; Delaware,  1 ; Mary- 
land, 4;  Virginia,  9;  North  Carolina,  5 ; South  Carolina,  5 ; Georcria  2 
« Elliot,  V.  287,288. 


408  CONSTITUTIONAL  HISTORY. 

after  a second  reference  to  a committee  of  one  member  from  each 
state.' 

These  votes  had  been  taken  for  the  purpose  of  agreeing  upon 
amendments  to  the  original  report  of  the  compromise  committee, 
which  they  would  have  so  modified  as  to  introduce  into  it,  in  place 
of  a ratio  of  forty  thousand  inhabitants,  including  three  fifths  of 
the  slaves,  a fixed  number  of  representatives  for  the  first  meeting 
of  the  legislature,  distributed  by  estimate  among  the  states,  and 
for  all  subsequent  meetings  an  apportionment  by  the  legislature 
itself  upon  the  combined  principles  of  the  wealth  and  numbers  of 
inhabitants  of  the  several  states.  But  in  order  to  understand  the 
objections  to  the  latter  part  of  this  proposition,  and  the  modifica- 
tions that  were  still  to  be  made  in  it,  it  is  necessary  for  us  here  to 
recur  to  that  special  interest  which  caused  a new  and  most  serious 
difficulty  in  the  subject  of  representation,  and  which  now  began 
to  be  distinctly  asserted  by  those  whose  duty  it  was  to  provide 
for  it.  There  is  no  part  of  the  history  of  the  Constitution  that 
more  requires  to  be  examined  with  a careful  attention  to  facts, 
with  an  unprejudiced  consideration  of  the  purposes  and  motives 
of  those  who  became  the  agents  of  its  great  compromises  and 
compacts  between  sovereign  states,  and  with  an  impartial  survey 
of  the  difficulties  with  which  they  had  to  contend. 

Twice  had  the  Convention  affirmed  the  propriety  of  counting 
the  slaves,  if  the  states  were  to  be  represented  according  to  the 
numbers  of  their  inhabitants ; and  on  the  part  of  the  slaveholding 
states  there  had  hitherto  been  no  dissatisfaction  manifested  with 
the  old  proportion  of  three  fifths,  originally  proposed  under  the 
Confederation  as  a rule  for  including  them  in  the  basis  of  taxable 
property.  But  the  idea  was  now  advanced  that  numbers  of  in- 
habitants were  not  a sufficient  measure  of  the  wealth  of  a state, 
and  that,  in  adjusting  a system  of  representation  between  such 
states  as  those  of  the  American  Union,  regard  should  be  had  to 
their  relative  wealth,  since  those  which  were  to  be  the  most  heavily 
taxed  ought  to  have  a proportionate  influence  in  the  government. 


' This  apportionment  gave  to  New  Hampshire,  3;  Massachusetts,  8;  Rhode 
Island,  1;  Connecticut,  5;  New  York,  6;  New  Jersey,  4;  Pennsylvania,  8; 
Delaware,!;  Maryland,  6;  Virginia,  10;  North  Carolina,  5 ; South  Carolina,  5; 
Georgia,  3. 


INCLUSION  OF  THE  SLAVES. 


409 


ironco  the  ])lau  of  combining  numbers  and  wealtli  in  the  rule, 
fills  was  mainly  an  expedient  to  prevent  tlie  balance  of  power 
from  passing  to  the  Western  from  the  Atlantic  States.'  It  was 
supposed  that  the  former  might  in  jirogress  of  time  have  the 
larger  amount  of  jiopulation  ; but  that,  as  the  latter  would  at  the 
commoncement  of  the  government  have  the  power  in  their  own 
hands,  they  might  deal  out  the  right  of  representation  to  new 
states  in  such  proportions  as  would  be  most  for  their  own  inter- 
ests. Still  there  were  grave  objections  to  this  combined  rule  of 
numbers  and  wealth  as  applied  to  the  slaveholding  states.  In  the 
lp_t  pkce,  it  was  extremely  vague ; it  left  the  question  wholly  un- 
determined whether  the  slaves  were  to  be  regarded  as  persons  or 
as  property,  and  therefore  left  that  question  to  be  settled  by  the 
egislature  at  every  revision  of  the  system.  -Moreover,  although  / 
th^-ule  might  enable  the  Atlantic  States  to  retain  the  predomi- 
nating influence  m the  government  as  against  the  Western  inter- 
ests, It  might  also  enable  the  Northern  to  retain  the  control  as 
against  the  Southern  States,  after  the  former  had  lost  and  the  lat- 
ter had  gamed  a majority  of  population.  The  proposed  conjec- 
tural apportionment  of  members  for  the  first  Congress  would  give 
hirty-six  members  to  the  states  that  held  few  or  no  slaves,  and 
uenty-nine  to  the  states  that  held  many.  Mason  and  Eandolph  - 
who  represented  in  a candid  manner  the  objections  which  Vir- 
ginia must  entertain  to  such  a scheme,  did  not  deny  that,  accord- 
ing to  the  present  population  of  the  states,  the  northern  part  had 
a right  to  preponderate ; but  they  said  that  this  might  not  always 
e e case;  and  yet  that  the  power  might  be  retained  unjustfy 
if  the  proportion  on  which  future  apportionments  were  to  be  made 
by  the  legislature  were  not  ascertained  by  a definite  rule,  and 
peremp  ori  y fixed  by  the  Constitution.  Gouverneur  Morris  who 
strenuous  y maintained  the  necessity  for  guarding  the  intwests 
of  the  Atlantic  against  those  of  the  Western  States,  insisted  that 
he  combined  principles  of  numbers  and  wealth  gave  a sufficient 
ru  e for  the  legislature;  that  it  was  a rule  which  they  could  exe- 
cu  e ; and  that  it  would  avoid  the  necessity  of  a distinct  and  special 
admission  of  the  slaves  into  the  census,  an  idea  which  he  was  sure 
e people  of  Pennsylvania  would  reject.  Mr.  Madison  aro-ued  / 

, ^ “ ’ \J 

' See  Mr.  Gorham's  explanation ; Madison,  Elliot,  V.  388. 


CONSTITUTIONAL  HISTORY. 


410 

forcibly,  that  unfavorable  distinctions  against  the  new  states  that 
might  be  formed  in  the  West  would  be  both  unjust  and  impolitic, 
lie  thought  that  their  future  contributions  to  the  treasury  had 
been  much  underrated  ; that  the  extent  and  fertility  of  the  Western 
soil  would  create  a vast  agricultural  interest ; and  that,  whether 
the  imposts  on  the  foreign  supplies  which  they  would  require  were 
levied  at  the  mouth  of  the  Mississippi  or  in  the  Atlantic  ports, 
their  trade  would  certainly  advance  with  their  population,  and 
would  entitle  them  to  a rule  which  should  assume  numbers  to  be 
a fair  index  of  wealth. 

The  arguments  against  the  combined  principles  of  numbers 
and  wealth,  as  a mere  general  direction  to  the  legislature,  and 
against  their  joint  operation  upon  the  contrasted  interests  of  the 
Western  and  the  Atlantic  States,  appear  to  have  prevailed  with 
some  of  the  more  prominent  of  the  Northern  members.*  Accord- 
ingly, when  a counter  proposition  was  brought  forward  by  Will- 

iamsoiT which  contemplated  a return  to  the  principle  of  numbers 

alone,  and  was  intended  to  provide  for  a periodical  census  of  the 
free  white  inhabitants  and  of  three  fifths  of  all  other  persons,  and 
that  the  representation  should  be  regulated  accordingly  six  states, 
on  a division  of  the  question,  voted  for  a census  of  the  free  inhab- 
itants, and  four  states  recorded  their  votes  against  it.“  This  result 
brought  the  Convention  to  a direct  vote  upon  the  naked  question 
whether  the  slaves  should  be  included  as  persons,  and  in  the  pro- 
portion of  three  fifths,  in  the  census  for  the  future  apportionment 
of  representatives  among  the  states, 
r Massachusetts  and  Pennsylvania  now,  for  the  first  time,  sepa- 
rated  themselves  from  Virginia.  It  was  perceived  that  a system 
of  representation  by  numbers  would  draw  after  it  the  necessity 


J . Sherman  and  Gorham.  ; Of  North  Carolina. 

3 Massachusetts,  Connecticut,  New  Jersey,  Pennsylvania, Virginia,  North  Caro- 
lina, ay,  6 ; Delaware,  Maryland,  South  Carolina,  Georgia,  no,  4.  The  votes  of 
South  Carolina  and  Georgia  were  given  in  the  negative,  because  they  desired 
that  the  blacks  should  be  included  in  the  census  equally  with  the  whites.  For 
the  same  reason,  as  we  shall  see  presently,  those  states  voted  against  the  other 
branch  of  the  proposition,  which  would  give  but  three  fifths  of  the  slaves.  But 
upon  what  principle,  unless  it  was  from  general  opposition  to  all  numerical  rep- 
resentation, the  state  of  Delaware  should  have  voted  with  them  on  both  of  these 
features  of  the  proposed  census,  is,  I confess,  to  me  inexplicable. 


INCLUSION  OP  THE  SLAVES. 


411 


for  an  admission  of  the  slaves  into  the  enumeration,  unless  it  were 
confined  to  the  free  inhabitants.  On  the  one  hand,  the  delegates 
of  these  two  states  had  to  look  to  the  probable  encouragement  of 
the  slave-trade  that  would  follow  an  admission  of  the  blacks  into 
the  representation,  and  to  the  probable  refusal  of  their  constitu- 
ents to  sanction  such  an  admission.  On  the  other  hand,  they  had 
to  encounter  the  difficulty  of  arranging  a just  rule  of  popular 
representation  between  states  which  would  have  no  slaves,  or 
very  few,  and  states  which  would  have  great  numbers  of  persons 
in  that  condition,  without  giving  to  the  latter  class  of  states  some 
weight  in  the  government  proportioned  to  the  magnitude  of  their 
populations.  But  they  would  not  directly  admit  the  naked  prin- 
ciple that  a slave  is  to  be  placed  in  the  same  category  with  a free- 
man for  the  purpose  of  representation,  Avhen  he  has  no  voice  in 
the  appointment  of  the  representative ; and  the  proposition  was 
rejected  by  their  votes  and  those  of  four  other  states.^  Thereupon 
the  whole  substitute  of  Mr.  Williamson,  which  contemplated  numer- 
ical representation  in  the  place  of  the  combined  rule  of  numbers 
and  wealth,  was  unanimously  rejected. 

The  report  of  the  committee  of  compromise  still  stood,  there- 
fore, but  modified  into  the  proposition  of  a fixed  number  for  the 
first  House  of  Representatives,  and  a rule  to  be  comjDounded  of 
the  numbers  and  wealth  of  the  states,  to  be  applied  by  the  legis- 
lature in  adjusting  the  representation  in  future  houses.  A dTffi- 
culty,  apparently  insuperable,  had  defeated  the  application  of  the 
simple  and— as  it  might  otherwise  appropriately  be  called— the 
natural  rule  of  numerical  representation.  The  social  and  political 
condition  of  the  slave,  so  totally  unlike  that  of  the  freeman,  pre- 
sented a problem  hitherto  unknown  in  the  voluntary  construction 
of  representative  government.  It  was  certainly  true  that,  by  the 
law  of  the  community  in  which  he  was  found,  and  by  his  normal 
condition,  he  could  have  no  voice  in  legislation.  It  was  equally 
true  that  he  was  no  party  to  the  establishment  of  any  state  con- 
stitution ; that  nobody  proposed  to  make  him  a party  to  the  Con- 
stitution of  the  United  States,  to  confer  upon  him  any  rights  or 


1 Connecticut,  Virginia,  North  Carolina,  Georgia,  ay,  4;  Massacliiisetts,  New 
Jersey,  Pennsylvania,  Delaware,  Maryland,  South  Carolina,  no,  6.  South  Carolina 
voted  in  the  negative,  for  a reason  suggested  in  the  previous  note,  ante,  p.410. 


412  CONSTITUTIONAL  HISTORY. 

privilogGS  under  it,  or  to  give  to  the  Union  any  power  to  affect  or 
influence  his  status  in  a single  particular.  It  was  true,  also,  that 
the  condition  in  which  he  was  held  was  looked  upon  with  strong 
disapprobation  and  dislike  by  the  people  of  several  of  the  states, 
and  it  was  not  denied  by  some  of  the  wisest  and  best  of  the  South- 
ern statesmen  that  it  was  a political  and  social  evil. 

Still,  there  were  more  than  half  a million  of  these  people  of 
the  African  race,  distributed  among  five  of  the  states,  performing 
their  labor,  constituting  their  peasantry,  and— if  the  numbers  of 
laborers  in  a community  form  any  just  index  of  its  wealth  and 
importance — forming  in  each  of  those  states  a most  important 
element  in  its  relative  magnitude  and  weight.  It  should  be  recol- 
lected that  the  problem  before  the  framers  of  the  Constitution 
was,  not  how  to  create  a system  of  representation  for  a single 
community  possessing  in  all  its  parts  the  same  social  institutions, 
but  how  to  create  a system  in  which  different  communities  of 
mere  freemen  and  other  different  communities  of  freemen  and 
slaves  could  be  represented,  in  a limited  government  instituted 
for  certain  special  objects,  with  a proper  regard  to  the  respective 
rights  and  interests  of  those  communities,  and  to  the  magnitude 
of  the  stake  which  they  would  respectively  have  in  the  legislation 
by  which  all  were  to  be  affected.' 

It  does  not  appear,  from  any  records  of  the  discussions  that 
have  come  down  to  us,  in  what  way  it  was  supposed  the  combined 
rule  of  numbers  and  wealth  could  be  applied.  If  its  application 
were  left  to  Congress,  in  adjusting  the  system  with  reference  to 
slaveholding  states,  the  slaves  must  be  counted  as  persons  or  as 
property  ; and  as  the  proposed  rule  did  not  determine  wdiich,  they 
might  be  treated  as  persons  in  one  census,  and  as  property  in  the 
next,  and  so  on  interchangeably.  The  suggestion  of  the  princi- 
ple, however,  Avhich  seemed  to  be  a just  one,  and  which  grew  out 
of  the  conflicting  opinions  entertained  upon  the  question  whether 
numbers  of  inhabitants  are  alone  a just  index  of  the  wealth  of  a 
community,  brought  into  view  a very  important  doctrine  that 
had  long  been  familiar  to  the  American  people  ; namely,  that  the 
right  of  representation  ought  to  be  conceded  to  every  communitv 

* See  the  note  on  the  popuhition  of  the  shivehokling  and  non-slaveliolding 
states,  at  the  end  of  this  chapter. 


TAXATION  AND  REPRESENTATION.  4i;> 

on  which  a tax  is  to  be  imposed  ; or,  as  one  of  the  maxims  of  the 
revolutionary  period  expressed  it,  that  “ taxation  and  rei)resen- 
tation  ought  to  go  together.”  This  doctrine  was  really  apjdica- 
ble  to  the  case,  and  capable  of  furnishing  a principle  that  would 
alleviate  the  dilficulty ; for  if  it  could  be  agreed  that,  in  levying 
taxes  upon  a slaveholding  state,  the  wealth  that  consisted  in 
slaves  should  be  included,  the  maxim  itself  demonstrated  the  pro- 
priety of  giving  as  large  a proportion  of  representation  as  the 
pi  oportion  of  tax  imposed ; and  if,  in  order  to  ascertain  the  rep- 
resentative right  of  the  state,  the  slaves  were  to  be  counted  as 
persons,  and  in  ascertaining  the  tax  to  be  paid  they  were  to  be 
counted  as  property,  they  would  not  require  to  be  considered  in 
both  capacities  under  either  branch  of  the  rule.  But  in  order  to 
gi\e  the  maxim  this  application,  it  would  be  necessary  to  con- 
cede that  the  numbers  of  the  slaves  and  the  free  persons  furnished 
a fair  index  of  the  wealth  of  one  state,  as  it  was  necessary  to  ad- 
mit that  the  numbers  of  its  free  inhabitants  furnished  a fair  index 
of  the  wealth  of  another  state.  If  the  latter  were  to  be  assumed, 
and  the  taxation  imposed  upon  a state  were  regulated  by  its -num- 
bers of  people,  upon  the  idea  that  such  numbers  fairly  represented 
the  wealth  of  the  community,  it  was  proper  to  apply  the  same 
principle  to  the  slaves.  If  this  principle  were  applied  to  the 
slaves  when  ascertaining  the  amount  of  taxes  to  be  paid,  it  ought 
equally  to  be  applied  to  them  in  ascertaining  the  numbers^  of 
representatives  to  be  allowed  to  the  state ; otherwise,  the  value 
of  the  slaves  must  be  ascertained  in  some  other  way,  for  the  pur- 
poses of  taxation ; the  value  or  Avealth  residing  in  other  kinds  of 
property  must  be  ascertained  in  the  same  mode,  or  under  the  dif- 
ferent rule  of  assuming  numbers  of  inhabitants  as  its  index  ; and 
the  slaves  must  be  excluded  as  persons  from  the  representa- 
tion, Avhich  they  could  only  enhance  by  being  treated  as  taxable 
property. 

These  further  diiHculties  will  appear,  as  we  follow  out  the 
various  steps  taken  for  the  purpose  of  applying  the  maxim  which 
counecte  taxation  with  representation.  The  rule  now  under  con- 
sideration, as  the  means  of  guiding  the  legislature  in  future  dis- 
tributions of  the  right  of  representation,  was  that  they  were  to 
regulate  it  upon  a ratio  compounded  of  the  wealth  and  numbers 
o inhabitants  of  the  states.  Gouvorneur  Morris  now  proposed 


CONSTITUTIONAL  HISTORY. 


414 

to  add  to  this,  as  a proviso,  the  correlative  proposition,  “ that 
direct  taxation  shall  be  in  proportion  to  representation.”  This 
was  adopted ; and  it  made  the  proposed  rule  of  numbers  and  wealth 
combined  applicable  both  to  taxation  and  representation. 

But  in  truth  it  was  as  difficult  to  apply  the  combined  rule  of 
wealth  and  numbers  to  the  subject  of  taxation,  as  between  the 
states,  as  it  was  to  apply  it  to  the  right  of  representation.  This 
was  not  the  first  time  in  the  history  of  the  Union  that  these  two 
subjects  had  been  considered,  and  had  been  found  to  be  surrounded 
with  embarrassments.  In  1776,  when  the  Articles  of  Confedera- 
tion were  framed,  it  became  necessary  to  determine  the  propor- 
tion in  which  the  quotas  of  contribution  to  the  general  treasury 
should  be  assessed  upon  the  states.  Two  obvious  rules  presented 
themselves  as  alternatives ; either  to  apportion  the  quotas  upon 
an  estimate  of  the  wealth  of  the  states,  or  to  assume  that  numbers 
of  inhabitants  of  every  condition  presented  a fair  index  of  the 
pecuniary  ability  of  a state  to  sustain  public  burdens.  Here  again, 
however,  under  either  of  these  plans,  the  question  would  arise  as 
to  the  kind  of  property  to  be  regarded  in  the  basis  of  the  assess- 
ment. Should  the  slaves  be  treated  as  part  of  the  property  of  a 
slaveholding  state,  either  by  a direct  computation,  or  by  counting 
them  as  part  of  the  population,  which  was  to  be  considered  as  the 
measure  of  its  wealth?  Mr.  John  Adams  forcibly  maintained 
that  they  ought  not  to  be  regarded  as  subjects  of  federal  taxa- 
tion any  more  than  the  free  laborers  of  the  Northern  States  ; but 
that  numbers  of  inhabitants  ought  to  be  taken,  indiscriminately, 
as  the  true  index  of  the  wealth  of  each  state ; and  that  thus  the 
slave  would  stand  upon  the  same  footing  with  the  free  laborer, 
both  being  regarded  as  the  producers  of  wealth,  and  therefore 
that  both  should  add  to  the  quota  of  tax  or  contribution  to  be 
levied  upon  the  state.'  Mr.  Chase,’  on  the  other  hand,  contended 
that  practically  this  rule  would  tax  the  Northern  States  on  num- 
bers only,  while  it  would  tax  the  Southern  States  on  numbers 
and  wealth  conjointly,  since  the  slaves  were  property  as  well  as 
persons. 

I f 1 See  Mr.  Jefferson’s  notes  of  this  debate  in  the  Congress  of  1776,  Works,  \ol. 
i.  pp.  26-30.  John  Adams’s  Works,  Vol.  II.  pp.  496-498. 

2 Samuel  Chase  of  Maryland. 


taxation  and  representation.  415 

It  IS  probable,  liowever,  that  tlie  slaveholding  states  would  at 
that  time,  have  agreed  to  the  adoption  of  numbers  as  the  basis  of 
assessment,  if  the  Northern  and  Eastern  States  could  have  con- 
sented to  receive  the  slaves  into  the  enumeration  in  a smaller  ratio 
than  their  whole  number.  But  it  was  insisted  that  they  should 
be  counted  equally  with  the  free  laborers  of  the  other  states ; and 
the  result  of  this  attempt  to  solve  a complicated  and  abstruse 
(piestion  of  political  economy  by  a theoretical  rule,  determinino- 
that  a slave,  as  a producer  of  wealth,  stands  upon  a precise  equaf- 
ity  AMtli  a freeman  performing  the  same  species  of  labor,  was  that 
the  Congress  of  1776  were  driven  to  the  adoption  of  land  as  a 

measure  of  wealth,  instead  of  the  more  convenient  and  practicable 
rule  ot  numbers.' 


But  the  Articles  of  Confederation  had  not  been  in  operation 
tor  two  years  when  it  was  found  that  the  system  of  obtaining 
supplies  tor  the  general  treasury  by  assessing  quotas  upon  the 
states  according  to  an  estimate  of  their  relative  wealth,  repre- 
sented by  the  value  of  their  lands,  was  entirely  impracticable ; 
that  the  value  of  land  must  constantly  be  a source  of  contention 
and  dissatisfaction  between  the  states ; and  that,  if  the  mode  of 
defiaying  the  expenses  of  the  Union  by  requisitions  were  adhered 
o,  some  simpler  rule  must  be  adopted.  Accordingly,  in  1783 
the  Congress  were  compelled  to  return  to  the  rule  of  numbers  • 
and  It  was  m the  effort  to  agree  upon  the  ratio  in  which  the  slaves 
should  enter  into  that  rule  that  the  proportion  of  three  fifths  was 
xed  upon,  as  a compromise  of  different  views  in  the  amendment 
then  proposed  to  the  Articles  of  Confederation.' 

Such  had  been  the  previous  experience  of  the  Union  on  the 
subject  of  taxation ; and  now,  in  1787,  when  an  effort  was  to  be 
made  to  establish  a government  upon  a popular  representation  of 
1 e states  which  had  found  it  so  difficult  to  agree  upon  a just  and 
practicable  rule  for  determining  their  proportions  of  the  public 
burdens,  the  whole  subject  became  still  further  complicated  with 
the  difficulties  attending  the  adjustment  of  this  new  right  of  pro- 
portional representation.  The  maxim  which  would  regulate  it 


^ See  ante,  pp.  142-144. 

'See  Mr.  Madison’s  notes  of  tlie  debate  in  the  Congress  of  1783,  Elliot,  V. 
-8-80.  Journals  of  Congress,  VIII.  188  (April  18,  1783).  Ante,  p.  144. 


CONSTITUTIONAL  HISTORY. 


416 

by  the  same  ratio  that  is  applied  to  the  distribution  of  taxes,  con- 
tained within  itself  a just  principle ; but  it  went  no  further  than 
to  assert  a principle  of  justice,  and  it  left  the  subject  of  the  rule 
itself  surrounded  by  the  same  difficulties  as  before.  The  Southern 
States  complained  that  their  slaves,  if  counted  as  property  for  the 
purposes  of  taxation,  were  to  be  so  counted  upon  a ratio  left  wholly 
to  the  discretion  of  Congress ; and  if  counted  as  numbers  for  the 
same  purpose,  that  they  ought  not  to  be  reckoned  in  their  entire 
number.  They  professed  their  readiness  to  have  representation 
and  taxation  regulated  by  the  same  rule,  but  they  insisted  on  the 
securitv  of  a dehnite  rule,  to  be  established  in  the  Constitution 
itself ; and  this  security,  they  said,  must  embrace  an  admission 
of  the  slaves  into  the  basis  of  representation,  if  they  were  to  be 
included  in  the  basis  of  direct  taxation.'  Accordingly,  before  the 
rule  as  to  taxation  had  been  determined,  Eandolph  submitted  a 
distinct  proposition,  which  contemplated  a census  of  the  vhite 
inhabitants  and  of  three  fifths  of  all  other  persons,  with  a per- 
emptory direction  to  Congress  to  arrange  the  representation  ac- 
cordingly. 

The  Northern  States,  on  the  other  hand,  resisted  the  direct  in- 
troduction of  the  slaves  into  the  representation,  as  persons ; and 
it  was  plain  that,  if  they  were  to  be  treated  as  property,  and  the 
representation  was  to  be  regulated  by  a rule  of  wealth,  their  value 
as  property  must  be  compared  with  that  of  other  species  of  per- 
sonalty held  in  the  same  and  in  other  states,  and  some  princiides 
for  computing  it  must  be  ascertained.  Upon  such  economical 
questions  as  these  the  agreement  of  different  minds,  under  the 
influence  of  different  interests,  was  absolutely  impossible. 

Thus  the  knot  of  these  complicated  difficulties  could  only  be 
out  by  the  sword  of  compromise.  In  whatever  direction  a theo- 
retical rule  was  applied — whatever  view  was  taken  of  the  slave, 
as  a person  or  as  an  article  of  property ; as  a productive  laborer 
equally  or  less  valuable  to  the  state  when  compared  with  the 
freeman- whatever  principles  were  maintained  upon  the  question 
whether  numbers  constitute  a proper  measure  of  the  wealth  of  a 
community,  and  one  that  will  work  out  the  same  result  in  com- 


> See  the  vemai  ks  of  General  Pinckney,  Mr.  Mason,  Mr.  Butler,  and  Governor 
Randolph.  Elliot,  V.  294—305. 


SLAVES  COUl^TED  AS  PERSONS. 


417 

munities  where  slavery  exists,  as  well  as  where  it  is  absent— ab- 
solute truth,  or  what  the  whole  country  would  receive  as  such, 
was  unattainable.  But  an  adjustment  of  the  problem,  founded  on 
mutual  conciliation  and  a desire  to  be  just,  was  not  impossible. 

The  two  objects  to  be  accomplished  were  to  avoid  the  offence 
that  might  be  given  to  the  Northern  States  by  making  the  slaves 
in  direct  terms  an  ingredient  in  the  rule  of  representation,  and,  on 
the  other  hand,  to  concede  to  the  Southern  States  the  right  to  have 
their  representation  enhanced  by  the  same  enumeration  of  their 
slaves  that  might  be  adopted  for  the  purpose  of  apportioning  di- 
rect taxation.  These  objects  were  effected  by  an  arrangement 
proposed  by  Wilson.  It  consisted/first,  in  affirming  the  maxim 
that  representation  ought  to  be  proportioned  to  direct  taxation ; 
and  then,  by  directing  a periodical  census  of  the  free  inhabitants, 
and  three  fifths  of  all  other  persons,  to  be  taken  by  the  authority 
of  the  United  StatesJUnd  that*  the  direct  taxation  should  be  ap- 
poitioned  among  the  states  according  to  this  census  of  .persons. 
The  principle  was  thus  established  that,  for  the  purpose  of  direct 
taxation,  the  number  of  inhabitants  in  each  state  should  be  as- 
sumed as  the  measure  of  its  relative  wealth ; and  that  its  right  of 
representation  should  be  regulated  by  the  same  measure ; and  as 
the  slaves  were  to  be  admitted  into  the  rule  for  taxation  in  the 
pioportion  of  three  fifths  of  their  number  only — apparently  upon 
the  supposition  that  the  labor  of  a slave  is  less  valuable  to  the 
state  than  the  labor  of  a freeman— so  they  were  in  the  same  pro- 
portion only  to  enhance  the  representation.  This  expedient  was 
adopted  by  the  votes  of  a large  majority  of  the  states but  since 
It  had  been  moved  as  an  amendment  to  the  proposition  previously 
accepted,  which  affirmed  that  the  representation  ought  to  be  reg- 
ulated by  the  combined  rule  of  numbers  and  wealth,  it  appeared, 
when  brought  into  that  connection,  to  rest  the  representation  of 
the  slaveholding  states  in  respect  to  the  slaves,  in  part  at  least, 
upon  the  idea  of  property.  To  avoid  all  discrepancy  in  the  appli- 
cation of  the  rule  to  tlie  two  subjects  of  representation  and  taxa- 
tion, Governor  Kandolph  proposed  to  strike  the  word  wealth  *’ 
from  the  resolution  ; and  this,  having  been  done  by  a vote  nearly 

' Connecticut,  Pennsylvania,  Maryland,  Virginia,  North  Carolina,  Georgia, 
ay,  6;  New  Jersey,  Delaware,  no,  2;  Massachusetts,  South  Carolina,  divided'" 

I.— 27 


418 


CONSTITUTIONAL  HISTORY. 


unanimous,'  left  the  enumeration  of  the  slaves  for  both  purposes 
an  enumeration  of  persons,  in  less  than  their  whole  numbers ; 
placing  them  in  the  rule  for  taxation,  not  as  property  and  subjects 
of  taxation,  but  as  constituting  part  of  an  assumed  measure  of  the 
wealth  of  a state,  just  as  the  free  inhabitants  constituted  another 
part  of  the  same  measure,  and  placing  them  in  the  same  ratio  and 
in  the  same  capacity  in  the  rule  for  representation." 

The  basis  of  the  House  of  Kepresentatives  having  been  thus 
agreed  to,  the  remaining  part  of  the  report,  which  involved  the 
basis  of  the  Senate,  was  then  taken  up  for  consideration.  Wilson, 
King,  Madison,  and  Kandolph  still  opposed  the  equality  of  votes 
in  the  Senate,  upon  the  ground  that  the  government  was  to  act 
upon  the  people  and  not  upon  the  states,  and  therefore  the  people, 
not  the  states,  should  be  represented  in  every  branch  of  it.  But 
the  whole  plan  of  representation  embraced  in  the  amended  report, 
including  the  equality  of  votes  in  the  Senate,  was  adopted,  by  a 
bare  majority,  however,  of  the  states  present. 

When  this  result  was  announced.  Governor  Kandolph  com- 
plained of  its  embarrassing  effect  on  that  part  of  the  plan  of  a 
constitution  which  concerned  the  powers  to  be  vested  in  the  gen- 
eral government  5 all  of  which,  he  said,  were  predicated  upon 
the  idea  of  a proportionate  representation  of  the  states  in  both 
branches  of  the  legislature.  He  desired  an  opportunity  to  modify 
the  plan,  by  providing  for  certain  cases  to  which  the  equality  of 
votes  should  be  confined ; and  in  order  to  enable  both  parties  to 
consult  informally  upon  some  expedient  that  would  bring  about  a 
unanimity,  he  proposed  an  adjournment.  On  the  following  morn- 
ing, we  are  told  by  Mr.  Madison,  the  members  opposed  to  an 
equality  of  votes  in  the  Senate  became  convinced  of  the  impolicy 

> The  only  opposition  was  from  Delaware,  the  vote  of  which  was  divided. 

2 gee  the  note  at  the  end  of  tliis  chapter. 

Connecticut,  New  Jersey,  Delaware,  Maryland,  North  Carolina  (Mr.  Spaiglit, 
no),  ay,  5 ; Pennsylvania,  Virginia,  South  Carolina,  Georgia,  no,  4 ; Massachusetts 
divided  (Mr.  Gerry,  Mr.  Strong,  ay,  Mr.  King,  Mr.  Gorham,  no).  The  delegates 
of  New  York  were  all  absent;  Messrs.  Yates  and  Lansing  left  the  Convention 
on  the  5tli  of  July,  after  the  principle  of  popular  representation  had  been 
adopted.  Colonel  Hamilton  was  absent  on  private  business.  If  the  two  former 
had  been  present,  the  vote  of  the  state  would  doubtless  have  been  given  in 
favor  of  the  report,  on  account  of  the  basis  which  it  gave  to  the  Senate. 


THE  SENATE  AS  A CHECK  UPON  THE  HOUSE. 


419 


of  risking-  an  agrcomont  of  tlie  states  upon  any  ]>lan  of  govern- 
ment by  an  inllexible  opposition  to  this  feature  of  the  scheme 
proposed,  ami  it  was  tacitly  allowed  to  stand.' 

Great  jiraise  is  due  to  the  moderation  of  those  who  made  this 
concession  to  the  fears  and  jealousies  of  the  smaller  states.  That 
it  was  felt  by  them  to  be  a great  concession  no  one  can  doubt  who 
considers  that  the  chief  cause  which  had  brought  about  this  con- 
vention of  the  states  was  the  inefficiency  of  the  “ federal  ” prinoi- 
jile  on  which  the  former  Union  had  been  established.  Lookino- 
back  to  all  that  had  happened  since  the  Confederation  was  formed 

to  the  repeated  failures  of  the  states  to  comply  with  the  consti- 
tutional demands  of  the  Congress,  and  to  the  entire  impracticabil- 
ity of  a system  that  had  no  true  legislative  basis,  and  could  there- 
fore exert  no  true  legislative  power— we  ought  not  to  be  surprised 
t lat  the  retention  of  the  principle  of  an  equal  state  representation 

m any  part  of  the  new  government  should  have  been  resisted  so 
strenuously  and  so  long. 

That  the  final  concession  of  this  point  was  also  a wise  and  for- 
tunate  determination  there  can  be  no  doubt.  Those  who  made 
it  probaWy  (,id  not  foresee  all  its  advantages,  or  comprehend  all 
Its  manifold  relations.  They  looked  to  it,  in  the  first  instance,  as 
the  means  of  securing  the  acceptance  of  the  Constitution  bv  all 
the  st^es,  and  thus  of  preventing  the  evils  of  a partial  confeder- 
probably  did  not  at  once  anticipate  the  benefits  to  be 
derived  from  giving  to  a majority  of  the  states  a check  upon  the 
egis  ative  power  of  a majority  of  the  whole  people  of  the  United 
states.  Complicated  as  tins  check  is,  it  both  recognizes  and  pre- 
serves the  residuary  sovereignty  of  the  states  ; it  enables  them  to 
liold  the  general  government  within  its  constitutional  sphere  of 
ac  ion,  and  it  is  in  fact  the  only  expedient  that  could  have  been 
success&lly  adopted  to  preserve  the  state  governments,  and  to 
oic  le  ot  lei  V ise  inevitable  alternative  of  conferrino-  on  the 
general  government  plenary  legislative  power  upon  all°subjects 
J-t  IS  a part  of  the  Constitution  which  it  is  vain  to  try  by  any 
s andard  of  theory;  for  it  was  the  result  of  a mere  compromise 
o opposite  theories  and  conflicting  interests.  Its  best  eulogium 
IS  to  be  found  in  its  practical  working,  and  in  what  it  did  to  pro- 


' Elliot,  V.  319. 


420  CONSTITUTIONAL  HISTORY. 

(luce  the  acceptance  of  a constitution  believed,  at  the  time  of  its 
adoption,  to  have  given  an  undue  share  of  influence  and  power 
to  the  larger  members  of  the  Confederacy.' 

1 Mr.  Madison,  who  was  to  tlie  last  a strenuous  opponent  of  the  equality  of 
votes  in  the  Senate,  candidly  and  truly  stated  its  merits  in  the  G2d  number  of 
the  Federalist,  as  they  had  been  disclosed  to  him  by  subsequent  reflection. 


NOTE  ON  THE  POPULATION  OF  THE  SLAVEHOLDING  AND  NON- 
SLAVEHOLDING STATES. 

Although,  at  the  time  of  the  formation  of  the  Constitution,  slavery  had  been 
expressly  Abolished  in  two  of  the  states  only  (Massachusetts  and  New  Hamp- 
shire), the  framers  of  that  instrument  practically  treated  all  but  the  five  Southern 
States  as  if  the  institution  had  been  already  abolished  within  their  limits,  and 
counted  all  the  colored  persons  therein,  whether  bond  or  free,  as  part  of  the  free 
population;  assuming  that  the  eight  Northern  and  Middle  States  would  be  free 
states  and  that  the  five  Southern  States  would  continue  to  be  slave  states.  This 
appears  from  the  whole  tenor  of  the  debates,  in  whicli  the  line  is  constantly 
drawn  as  between  slaveholding  and  non-slaveholding  states,  so  as  to  throw 
eio-ht  ktes  upon  the  Northern  and  five  upon  the  Southern  side.  I have  found 
also,  in  a newspaper  of  that  period  (New  York  Daily  Advertiser,  February  5, 
1788)  the  following 

Estimate  of  the  Population  of  the  States  made  and  used  in  the  Fed- 
eral Convention,  according  to  the  most  Accurate  Accounts  they 

COULD  OBTAIN.” 


New  Hampshire, 
Massachusetts, 
Rhode  Island, 
Connecticut,  . 
New  York, 

New  Jersey,  . 
Pennsylvania, 
Delaware,  . . 


Maryland,  including  three  fifths  of  80,000  negroes, 
Virginia,  “ “ 280,000  “ 

North  Carolina,  “ “ 60,000 

South  Carolina,  “ “ 80,000 

Georgia,  “ “ 20,000  “ 


102,000 

360,000 

58.000 
202,000 

238.000 

138.000 

360.000 

37.000 

1,495,000 

218,000 

420.000 

200.000 
150,000 

90,000 

1,078,000 


The  authenticity  of  this  table  is 


established  by  referring  to  a speech  made 


POPULATION  OP  STATES  IN  1787.  42I 

l.v  Gencml  Pinckney  in  the  legisintnrc  of  Sonth  Carolina,  in  which  ho  intro- 
duced and  finoted  it  at  lono-th.  (Elliot’s  Debates,  IV.  38:!.) 

From  tins  it  appears  that  the  estimated  poinilation  of  the  ei'>-|,t  Northern 
and  middle  States,  adopted  in  the  Convention,  was  1,49,7,000;  that  of  the  five 

,0,8,000  Comparing  this  estimate  witli  the  resnlts  of  the  lirst  censns  it  will 
le  seen  that  the  total  population  of  the  eight  Northern  and  Middle  States  ex- 
ceeds the/r*™l  population  of  the  five  Southern  States,  in  the  census  of  1790 
a lout  the  same  ratio  as  the  former  exceeds  the  latter  in  the  estimate  em- 
ployed by  the  Convention.  Thus  in  1790  the  total  population  of  the  ei<rht 
oit  ici  n and  Middle  States,  including  all  slaves,  was  1,845,595;  the  federal 
population  of  the  five  Sontherii  States,  including  three  fifths  the  slav{s  was 
,o40,048- excess  30o,547.  In  the  estimate  of  1787  the  population  allotted  to 

S^uiT"  StT  “Hotted  to  the  five 

n-«  non  ’ estimated  miniber  of  slaves 

nas  1,0,8,000-excess  in  favor  of  the  eight  states,  417,000.  This  calculation’ 
shows,  therefore  that,  in  estimating  the  population  of  the  different  states  for 

„lier7“"i  in  Congress,  the  Convention  ap- 

1 at  as  to  U H ‘>'0  five  Southern  States  only,  and 

tlnat  as  to  the  other  eight  states  no  discrimination  was  made  between  the  differ 

ent  classes  of  their  inhabitants.  Other  methods  of  comparing  the  estimate  of 
1,87  with  the  census  of  1790  will  lead  to  the  same  conclusion. 


CHAPTER  XXIY. 

Powers  of  Legislation. — Constitution  and  Choice  of  the  Ex- 
ecutive.— Constitution  of  the  Judiciary. — Admission  of  New 
States. — Completion  of  the  Engagements  of  Congress. 
Guarantee  of  Republican  Constitutions.— Oath  to  Support 
THE  Constitution.  — Ratification.  — Xumber  of  Senators. 
Qualifications  for  Office. — Seat  of  Government. 

Of  the  remaining  subjects  comprehended  in  the  report  of  the 
committee  of  the  whole,  it  will  only  be  necessary  here  to  make  a 
brief  statement  of  the  action  of  the  Convention,  before  we  ariive 
at  the  stage  at  which  the  principles  agreed  upon  were  sent  to  a 
committee  of  detail  to  be  cast  into  the  forms  of  a constitution. 

Recurring  to  the  sixth  resolution  in  the  report  of  the  commit- 
tee of  the  whole,  an  addition  wms  made  to  its  provisions,  by  in- 
serting a power  to  legislate  in  all  cases  for  the  general  interests 
of  the'^Union;  and  for  the  clause  giving  the  legislature  power  to 
negative  certain  laws  of  the  states,  the  principle  was  substituted 
of  making  the  legislative  acts  and  treaties  of  the  United  States 
the  supreme  law  of  the  land,  and  binding  upon  the  judiciaries  of 
the  several  states. 

The  constitution  of  the  executive  department  had  been  pro- 
vided for,  by  declaring  that  it  should  consist  of  a single  person,  to 
be  chosen  by  the  national  legislature  for  a^^eriod  of  seven  years, 
and  to  be  ineligible  a second  time ; to  have  power  to  carry  into 
execution  the  national  laws,  to  appoint  to  offices  not  otherwise 
provided  for,  to  be  removable  on  impeachment,  and  to  be  paid  for 
his  services  by  a fixed  stipend  out  of  the  national  treasury.  The 
mode  of  constituting  this  department  did  not,  as  in  the  case  of 
the  legislative,  present  the  question  touching  the  nature  of  the 
government  described  by  the  terms  “ federal  ” and  ‘‘  national.” 
It  was  entirely  consistent  wdth  either  plan— with  that  of  a union 
formed  by  the  states  in  their  political  capacities,  or  with  one 


Tin:  EXECUTIVE  ELIGIBLE  TO  A RE-ELECTION.  423 

formed  by  the  people  of  the  states,  or  with  one  partaking  of  both 
characters — that  the  executive  should  be  chosen  mediately  or  im- 
mediately by  the  people,  or  by  the  legislatures  or  executives  of 
the  states,  or  by  the  national  legislature. 

The  same  contest,  therefore,  between  the  friends  and  opponents 
of  a national  system  was  not  obliged  to  be  renewed  upon  this  de- 
partment. So  long  as  the  form  to  be  given  to  the  institution  was 
consistent  with  a system  of  republican  government — so  long  as  it 
])rovided  an  elective  magistrate,  not  appointed  by  an  oligarchy, 
and  holding  by  a responsible  and  defeasible  tenure  of  otRce— 
whether  he  should  be  chosen  by  the  people  of  the  states,  or  by 
some  of  their  public  servants,  would  not  affect  the  principles 
on  which  the  legislative  power  of  the  government  was  to  be 
founded.  But  this  very  latitude  of  choice,  as  to  the  mode  of 
appointment  and  the  duration  of  office,  opened  the  greatest 
diversity  of  opinion.  In  the  earlier  stages  of  the  formation  of  a 
plan  of  government  of  three  distinct  departments,  the  idea  of  an 
election  of  the  executive  by  the  people  at  large  was  scarcely  en- 
tertained at  all.  It  was  not  supposed  to  be  practicable  for  the 
people  of  the  different  states  to  make  an  intelligent  and  wise 
choice  of  the  kind  of  magistrate  then  contemplated— a magistrate 
whose  chief  function  was  to  be  that  of  an  executive  agent  of  the 
legislative  will.  Kegarding  the  office  mainly  in  this  light,  with- 
out having  yet  had  occasion  to  look  at  it  closely  as  the  source  of 
appointments  to  other  offices  and  as  the  depositary  of  a check  on 
the  legislative  power  itself,  the  framers  of  the  plan  now  under  con- 
sideration had  proposed  to  vest  the  appointment  in  the  legislature, 
as  the  readiest  mode  of  obtaining  a suitable  incumbent,  without 
the  tumults  and  risks  of  a popular  election.  But  the  power  of 
appointment  to  other  offices  and  the  revisionary  check  on  legisla- 
tion were  no  sooner  annexed  to  the  executive  office  than  it  was 
perceived  that  some  provision  must  be  made  for  obviating  the 
effects  of  its  dependence  on  the  legislative  branch.  An  executive 
chosen  by  the  legislature  must  be  to  a great  extent  the  creature  of 
those  from  whom  his  appointment  was  derived. 

To  counteract  this  manifestly  great  inconvenience  and  impro- 
priety the  incumbent  of  the  executive  office  was  to  be  ineligible  a 
second  time.  This,  however,  was  to  encounter  one  inconvenience 
by  another,  since  the  more  faithfully  and  successfully  the  duties  of 


424 


CONSTITUTIONAL  HISTORY. 


the  station  might  be  discharged,  the  stronger  would  be  the  reasons 
for  continuing  the  individual  in  office.  The  ineligibility  was  ac- 
cordingly stricken  out.  Hence  it  was  that  a variety  of  proposi- 
tions concerning  the  length  of  the  term  of  office  were  attempted, 
as  expedients  to  counteract  the  evils  of  an  election  by  the  legisla- 
ture of  a magistrate  who  was  to  be  re-eligible ; and  among  them 
was  one  which  contemplated  good  behavior  ” as  the  sole  tenure 
of  the  office.'  This  proposition  was  much  considered  ; it  received 
the  votes  of  four  states  out  of  ten and  it  is  not  at  all  improbable 
that  it  would  have  received  a much  larger  support  if  the  sup- 
posed disadvantages  of  an  election  by  the  people  had  led  a ma- 
jority of  the  states  finally  to  i»etain  the  mode  of  an  election  by  the 
national  legislature.'  But  in  consequence  of  the  impossibility  of 

^ Moved  by  Dr.  M‘Clurg,  one  of  the  Virginia  delegates,  and  the  person  ap- 
pointed in  tlie  place  of  Patrick  Henry,  who  declined  to  attend  the  Convention. 

^ New  Jersey,  Pennsylvania,  Delaware,  Virginia,  4 ; Massachusetts,  Con- 
necticut, Maryland,  North  Carolina,  South  Carolina,  Georgia,  no,  6. 

3 I understand  Mr.  Madison  to  have  voted  for  this  proposition,  and  that  his 
view  of  it  was  that  it  might  be  a necessary  expedient  to  prevent  a dangerous 
union  of  the  legislative  and  executive  departments.  He  said  that  the  propriety 
of  the  plan  of  an  executive  during  good  behavior  would  depend  on  the  practica- 
bility of  instituting  a tribunal  for  impeachments  as  certain  and  as  adequate  in 
the  case  of  the  executive  as  in  the  case  of  the  judges.  His  remarks,  of  course, 
were  predicated  upon  the  idea  of  a final  necessity  for  retaining  the  choice  of  the 
executive  by  the  legislature.  In  a note  to  his  “Debates,”  appended  to  the  vote 
on  this  question,  it  is  said:  “This  vote  is  not  to  be  considered  as  any  certain 
index  of  opinion,  as  a number  in  the  atfirmative  probably  had  it  chiefiy  in  view 
to  alarm  those  attached  to  a dependence  of  the  executive  on  the  legislature,  and 
thereby  to  fiicilitate  some  final  arrangement  of  a contrary  tendency.  The 
avowed  friends  of  an  executive  ‘ during  good  behavior  ’ were  not  more  than  three 
or  four,  nor  is  it  certain  they  would  have  adhered  to  such  a tenure.”  (Madison, 
Elliot,  V.  327.)  By  “ the  avowed  friends  of  an  executive  during  good  behavior,’ 

I understand  Mr.  Madison  to  mean  those  who  would  have  preferred  that  tenure, 
under  all  forms  and  modes  of  election.  I can  trace  in  the  debates  no  evidence 
that  any  other  person  except  Gouverneur  Morris  was  indifferent  to  the  mode  in 
which  the  executive  should  be  chosen,  provided  he  held  his  place  by  this  tenure. 
Whether  Hamilton  held  this  opinion,  and  adhered  to  it  throughout,  is  a dis- 
puted point.  In  a letter  to  Timothy  Pickering,  written  in  1803,  he  says  that  his 
final  opinion  was  against  an  executive  during  good  behavior,  “ on  account  of  the 
increased  clanger  to  the  public  tranquillity  incident  to  the  election  of  a magistrate 
of  this  degree  of  permanency.”  In  proof  of  this  view  of  the  subject,  he  remarks: 
“ In  the  plan  of  a Constitution  which  I drew  up  while  the  Convention  was  sitting, 


425 


ELECTORS  OF  THE  PRESIDENT. 

agreeing  upon  a jiroper  length  of  term  for  an  executive  that  was 
to  he  chosen  by  the  legislature,  the  majority  of  the  Convention 
M out  hack  to  the  plan  of  making  the  incumbent  ineligible  a sec- 
ond  time,  which  implied  that  some  definite  term  was  to  be  adopted, 
this  again  compelled  them  to  consider  in  what  other  mode  the 
executive  could  be  appointed,  so  as  to  avoid  the  evil  of  subiectino- 
the  olhee  to  the  unrestrained  influence  of  the  legislature,  and  to 

remove  the  restriction  upon  the  eligibility  of  the  officer  for  a sec 
ond  term. 

In  an  election  of  the  chief  executive  magistrate  by  the  people 
votmg  directly,  the  right  of  suffrage  would  have  to  be  confined  to 
the  flee  inhabitants  of  the  several  states.  But  even  with  respect 
to  the  free  inhabitants,  the  right  of  suffrage  was  differently  regu- 
lated in  the  different  states ; and  there  must  either  be  a uniform 
and  special  rule  established  as  to  the  qualification  of  voters  for  the 
executive  of  the  United  States,  or  the  rule  of  suffrage  of  each  state 
must  be  adopted  for  this  as  well  as  other  national  elections  In 
he  Northern  States,  too,  the  right  of  suffrage  was  much  more  dif- 
fused than  in  the  Southern,  and  the  question  must  arise,  as  it  had 
arisen  m the  construction  of  the  representative  system,  whether 
the  states  were  to  possess  an  influence  in  the  choice  of  a chief 
magistrate  for  the  Union  in  proportion  to  the  number  of  their  in- 

labitants  or  only  m proportion  to  their  qualified  voters  or  their 
tree  inhabitants. 

bv  S'*  ®^®®tors  would  obviate  these  difficulties, 

by  affording  the  means  of  determining  the  precise  weight  in  the 
ejection  that  should  be  allotted  to  each  state,  without  attempting 

1!  w^it  t [r  “ons: 

emoM  g the  election  from  the  direct  action  of  the  people,  by  con- 
Ming  the  ultimate  selection  to  a body  of  men  to  be  chos;n  for 

ndivhLT'  ^ 

mo  ll  of  1 But  the 

node  of  choice  was  complicated  with  the  other  questions  of  re- 

of  ib  a dav 


^26  CONSTITUTIONAL  HISTORY. 

eligibility,  and  especially  with  that  of  impeachment.  If  appointed 
by^^electors,  there  would  be  danger  of  their  being  corrupted  by  the 
person  in  office,  if  he  were  eligible  a second  time,  or  by  a candi- 
date who  had  not  tilled  the  station.  Hence  there  would  be  a pro- 
priety in  making  the  executive  subject  to  impeachment  while  in 
office.  If  chosen  by  the  legislature,  it  seemed  to  be  generally  agreed 
that  the  executive  ought  not  to  be  eligible  a second  time ; but 
whether  he  ought  to  be  subject  to  impeachment,  and  by  what  tribu- 
nal, was  a subject  on  which  there  were  great  differences  of  opinion. 

The  consequence  of  this  great  diversity  of  views  was,  that  the 
plan  embraced  in  the  ninth  resolution  of  the  commfftee  of  the 
whole  was  retained  and  sent  to  the  committee  of  detail. 

With  respect  to  the  judiciary,  several  important  changes  were 
made  in  the  plan  of  the  committee  of  the  whole.  ^ The  prohibi- 
tion against  any  increase  of  salary  of  the  individuals  holding 
the  office  was  stricken  out,  and  the  restriction  was  made  appli- 
cable only  to  a diminution  of  the  salary.  The  cognizance  of  im- 
peachments of  national  officers  was  taken  from  their  jurisdiction, 
and  the  principle  was  adopted  which  extended  that  jurisdiction 
to  all  cases  arising  under  the  national  laws,  and  to  such  other 
questions  as  may  involve  the  national  peace  and  harmon} . The 
power  to  appoint  inferior  judicial  tribunals  was  confirmed  to  the 
national  legislature. 

The  fourteenth  resolution,  providing  for  the  admission  of  new 

states,  was  unanimously  agreed  to. 

The  fifteenth  resolution,  providing  for  the  continuance  of  Con- 
gress and  for  the  completion  of  their  engagements,  was  rejected. 

The  principle  of  the  sixteenth  resolution,  which  provided  a 
guarantee  by  the  United  States  of  the  institutions  of  the  states, 
was  essentially  modified.  In  the  place  of  a guarantee  applicable 
both  to  a republican  constitution  and  the  “existing  laws”  of  a 
state,  the  declaration  was  adopted,  “ that  a republican  form  of 
government  shall  be  guaranteed  to  each  state,  and  that  each  state 
shall  be  protected  against  foreign  and  domestic  violence.” ' 

The  seventeenth  resolution,  that  provision  ought  to  be  made 
for  future  amendments,  was  adopted  without  debate.' 

^ Ante,  Chap.  XXI.  _ i • i. 

" At  this  point  (July  23d)  John  Langdon  and  Nicholas  Gilman  took  their  seats 

as  delegates  from  New  Hampshire. 


now  THE  CONSTITUTION  WAS  TO  BE  ADOPTED.  427 

The  eiglitccnt]i  resolution,  requiring-  the  legislative,  executive, 
and  judicial  olHcers  of  the  states  to  bo  bound  by  oath  to  sup[)ort 
tlie  Articles  of  Union,  was  then  extended  to  include  the  oilicers 
of  the  national  government. 

The  next  subject  that  occurred  in  the  order  of  the  resolutions 
was  that  of  the  proposed  ratification  of  the  new  system  by  the 
l)cop]e  of  the  states,  acting  through  representative*^  bodies  to  be 
expressly  chosen  for  this  purpose,  instead  of  referring  it  for  adop- 
tion to  the  legislatures  of  the  states. 

As  this  is  a subject  on  which  very  different  theories  are  main- 
tained, arising  partly  from  different  views  of  the  historical  facts, 
and  as  there  are  very  different  degrees  of  importance  attached  to 
the  mode  in  which  the  framers  of  the  Constitution  provided  for 
its  establishment,  it  will  be  convenient  here  to  state  the  position  in 
which  they  found  themselves  at  this  period  in  their  deliberations, 
the  purposes  which  they  had  in  view,  and  the  steps  which  they 
took  to  accomplish  their  objects. 

They  were  engaged  in  preparing  a new  system  of  government, 
and  in  providing  for  its  introduction.  When  they  were  first  called 
together  the  general  purpose  of  the  states  may  seem  to  have 
been  confined  to  a mode  of  introducing  changes  in  the  fundamen- 
tal compact  of  the  Union,  such  as  was  provided  for  by  the  Articles 
of  Confederation.  But  the  Convention  had  found  itself  obliged, 
from  the  sheer  necessities  of  the  country,  to  go  far  beyond ^the 
Confederation,  and  to  make  a total  change  in  the  principle  of  the 
goveinment.  It  became,  therefore,  necessary  for  them  to  provide 
a mode  of  enacting  or  establishing  this  change,  which  would  com- 
mend itself  to  the  confidence  of  the  people,  by  its  conformity 
vith  their  previous  ideas  of  constitutional  action,  and  be  at  the 
same  time  consonant  with  reason  and  truth. 

Again,  there  was  a peculiarity  in  their  situation  which  ren- 
dered It  quite  different  from  that  of  the  delegates  of  a people  who 
had  abolished  a pre-existing  government,  and  had  assembled  a 
representative  body  to  form  a new  one.  The  Confederation  still 
existed.  As  a compact  between  sovereign  states,  providing  for  a 
special  mode  in  which  alterations  of  its  articles  were  to  be  made, 
and  limiting  their  adoption  to  the  case  of  unanimous  consent,  it 
was  still  in  force.  The  states,  in  their  political  capacities  as 
sovereign  communities,  were  still  the  parties  to  the  compact,  and 


CONSTITUTIONAL  HISTORY. 


428 

their  legislatures  alone  were  clothed  with  the  authority  to  change 
its  provisions.  It  was  necessary,  therefore,  to  encounter  and  to 
solve  the  question,  Avhether  a new  government,  framed  upon  a 
principle  unlike  that  of  the  Confederation,  and  embracing  an  en- 
tirely different  legislative  authority,  could  be  estaldished  in  the 
mode  prescribed  by  the  existing  compact  of  the  states  5 and  if  it 
could  not,  whether  there  existed  any  power,  apart  from  the  state 
governments,  by  which  it  could  be  established  and  be  clothed 
with  a paramount  authority,  resting  on  a basis  of  principle,  and 
not  upon  force,  fiction,  or  fraud. 

In  the  early  formation  of  the  Union  that  took  place  before  the 
Declaration  of  Independence,  questions  of  the  constitutional  power 
of  the  colonies  which  became  members  of  it  could  scarcely  arise 
at  all,  since  those  who  undertook  to  act  for  and  to  represent  the 
people  of  each  colony  were  proceeding  upon  revolutionary  prin- 
ciples and  rights.  But  before  the  Articles  of  Confederation,  which 
constituted  the  first  union  of  the  states  upon  ascertained  and 
settled  principles  of  government,  had  been  agreed  upon,  many  of 
the  state  constitutions  were  formed;  and  Avhen  those  articles 
Avere  entered  into,  the  state  governments  represented  the  sover- 
eigntv  of  distinct  political  communities,  and  Avere  entirely  com- 
petent to  form  such  a confederacy  as  AA^as  then  established  by 
their  joint  and  unanimous  consent.  All  the  obligations  AAmich  the 
Confederation  imposed  upon  its  members  rested  upon  the  states 
in  their  corporate  capacities  ; and  the  government  of  each  of  them 
Avas  competent  to  assume,  for  the  state,  such  obligations  and  to 
enter  into  such  stipulations.  In  the  same  Avay  it  was  competent 
to  the  state  governments  to  make  alterations  in  the  Articles  of 
Confederation,  by  unanimous  consent,  so  long  as  those  alterations 
did  not  change  the  fundamental  principle  of  the  Union,  Avhich 
was  that  of  a system  of  legislation  for  the  states  in  their  corpo- 
rate capacities. 

But  Avhen  it  Avas  proposed  to  reverse  this  principle,  and  to 
create  a government,  external  to  the  governments  of  the  states, 
clothed  with  authority  to  exact  obedience  from  the  individual  in- 
habitants of  the  states,  and  to  act  upon  them  directly,  the  question 
might  well  arise  whether  the  state  governments  were  competent 
to  cede  such  an  authority  over  their  constituents,  and  whether 
it  could  be  granted  by  anybody  but  the  people  themselves.  It 


421) 


now  THE  CONSTITUTION  WAS  TO  BE  ADOPTED. 

might,  it  is  true,  bo  said  that  their  constitutions  made  the  govern- 
ments of  the  states  tlie  depositaries  of  the  sovereignty  and  politi- 
cal powers  of  the  people  inhabiting  tliose  states.  But  if  this  was 
true  in  a pneral  sense  for  the  purpose  of  exercising  the  political 
])owers  of  the  jieople,  it  was  not  true  in  any  sense  for  the  pur- 
pose of  granting  away  those  powers  to  other  agents.  The  latter 
could  only  be  done  by  tliose  who  had  constituted  the  first  class  of 
agents,  and  who  were  able  to  say  that  certain  portions  of  the  au- 
thority with  which  they  had  been  clothed  should  be  withdrawn, 
and  be  revested  in  another  class.  ’ 

Undoubtedly  it  would  have  been  possible  to  have  given  the 
Constitution  of  the  United  States  a theoretical  adoption  by  the 
people  of  the  states,  by  committing  its  acceptance  to  the  state  legis- 
latures, relying  on  the  acquiescence  of  the  people  in  their  acts. 
But  there  were  two  objections  to  this  course.  The  one  was  that 
the  legislatures  were  believed  less  likely  than  the  people  to  fa- 
vor the  establishment  of  such  a government  as  that  now  pro- 
posed. The  other  was  that  the  kind  of  legal  fiction  by  which 
the  presumed  assent  of  the  people  must  be  reached,  in  this  mode, 
would  leave  room  for  doubts  and  disputes  as  to  the  real  basis 
and  authority  of  the  government,  which  ought,  if  possible,  to  be 
avoided. 

Another  difficulty  of  a kindred  nature  rendered  it  equally  in- 
expedient to  rely  on  the  sanction  of  the  state  legislatures.  The 
states,  in  their  corporate  capacities,  and  through  the  agency  of 
their  respective  governments,  were  parties  to  a federal  system 
which  they  had  stipulated  with  each  other  should  be  changed 
only  by  unanimous  consent.  The  Constitution,  which  was  now 
m the  process  of  formation,  was  a system  designed  for  the  accept- 
ance of  the  people  of  all  the  states,  if  the  assent  of  all  could  be 
obtained ; but  it  was  also  designed  for  the  acceptance  of  a less 
number  than  the  whole  of  the  states,  in  case  of  a refusal  of  some 
of  them ; and  it  was  at  this  time  highly  probable  that  at  least  two 
ot  them  would  not  adopt  it.  Khode  Island  had  never  been  repre- 
sented in  the  Convention ; and  the  whole  course  of  her  past  his- 
tory with  reference  to  enlargements  of  the  powers  of  the  Union 
made  it  quite  improbable  that  she  would  ratify  such  a plan  of 
government  as  was  now  to  be  presented  to  her.  The  state  of 
-New  York  had,  through  her  delegates,  taken  part  in  the  proceed- 


430 


CONSTITUTIONAL  HISTORY. 


ings  until  the  final  decision  which  introduced  into  the  government 
a system  of  popular  representation  j but  two  of  those  delegates, 
entirely  dissatisfied  with  that  decision,  had  withdrawn  from  the 
Convention  and  had  gone  home  to  prepare  the  state  for  the  re- 
jection of  the  scheme/  The  previous  conduct  of  the  state  had 
’made  it  not  at  all  unlikely  that  their  efforts  would  be  successful. 
Nor  were  there  wanting  other  indications  of  the  most  serious  dis- 
satisfaction, on  the  part  of  men  of  great  influence  in  some  of  the 
other  states.  Unanimity  had  already  become  hopeless,  if  not  im- 
practicable; and  it  was  necessary,  therefore,  to  look  forward  to 
the  event  of  an  adoption  of  the  system  by  a less  number  than  the 
whole  of  the  states,  and  to  make  it  practicable  for  a less  number 
to  form  the  new  Union  for  which  it  provided.  This  could  only 
be  done  by  presenting  it  for  ratification  to  the  people  of  each 
state,  who  possessed  authority  to  withdraw  the  state  government 
from  the  Confederation,  and  to  enter  into  new  relations  with  the 
people  of  such  other  states  as  might  also  withdraw  from  the  old 
and  accept  the  new  system. 

There  was  another  and  more  special  reason  for  resorting  to 
the  direct  sanction  of  the  people  of  the  states,  which  has  already 
been  referred  to  in  general  terms,  but  for  which  we  must  look  still 
more  closely  into  the  nature  of  the  system  proposed.  In  that 
system  the ’legislative  authority  was  to  reside  in  the  concurrent 
action  of  a majority  of  the  people  and  a majority  of  the  states. 
How  could  the  state  government  of  Delaware,  for  example,  confer 
upon  a majority  of  the  representatives  of  the  \ieo\Ae  of  all  the 
states,  and  a majority  of  the  representatives  of  all  the  states,  that 
might  adopt  the  new  Constitution,  power  to  bind  the  people  of 
Delaware  by  a legislative  act  to  which  their  own  representatives 
might  have  refused  their  assent?  The  state  government  was 
appointed  and  established  for  the  purpose  of  binding  the  people 
of  the  state  by  legislative  acts  of  their  own  servants  and  immedi- 
ate representatives ; but  not  for  the  purpose  of  consenting  that 
leo’islative  power  over  the  people  of  that  state  should  be  exercised 
by  agents  not  delegated  by  themselves.  Yet  such  a consent  was 
invofved  in  the  new  system  now  to  be  proposed,  and  was,  in  some 
way— by  some  safe  and  competent  method— to  be  obtained.  A 


See  the  letter  of  Messrs.  Y'atesand  Lansing  to  Governor  Clinton,  Elliot,  T.  480. 


431 


FINAL 


MODE  OF  RATIFICATION. 


leo-ishitive  power  was  to  be  created  by  the  assembling  in  one 
branch  of  the  rejn^esentatives  of  the  people  of  all  the  states,  in 
pro])ortion  to  their  numbers,  and  in  the  other  branch  by  assem- 
bling an  eipial  number  of  representatives  of  each  state,  without 
ropird  to  Its  numbers  of  people.  Tlie  authority  of  law,  upon  all 
sul)jtys  that  might  be  committed  to  this  legislative  power,  was 
to  attend  the  acts  of  concurring  majorities  in  both  branches,  even 
against  the  separate  and  adverse  will  of  the  minority.  It  was  im- 
possible to  rest  this  authority  upon  any  other  basis  than  that  of 
the  ratihcation  of  the  system  by  the  people  of  each  state,  to  be 
given  by  themselves  in  primary  assemblies,  or  by  delegates  expressly 
c losen  m such  assemblies,  and  appointed  to  give  it,  it  they  should 
see  fit  A system  founded  on  the  consent  of  the  legislatures 
would  be  a treaty  between  sovereign  states;  a system  founded 
on  the  consent  of  the  people  would  be  a constitution  of  govern- 

power-'' 

There  were  not  wanting,  however,  strong  advocates  of  a refer- 
ence to  the  state  legislatures;  and  the  votes  of  three  of  the  states 
were  at  fly  given  for  that  mode  of  ratifying  the  Constitution; 

but  the  other  plan  was  finally  adopted  with  nearly  unanimous 
consent'. 

' There  seems  to  be  a sound  distinction  between  tlie  two  wliicli  was  nointed 
out  .y  Mr.  Miidison.  He  said  that  “he  considered  the  difiference  between  a 

thnrueTff  ‘ "Vr  “"'y'  ““1  on  the  people,  to  be 

ti  ue  difference  between  a league,  or  treaty,  and  a conMtution.  The  Liner  in 

point  of  moral  obligatUn,  might  be  as  inviolable  as  the  latter.  In  point  of  poliU 

r s?rrr'‘  l r'*'®  <'>'^«"Otions  in  favor  of  the  hatter.  First 

; .sneLVrj'  i"''  ' ’’y  P‘-«^-<^-3tiug  [state]  law  mi^ht  be 

law  • r f ^ though  an  unwise  or  perfidious  one  ATstatel 

cLri  b tf  ^y  themselves  would  beLu 

deied  by  the  judges  ns  null  and  void.  Secondly,  the  doctrine  laid  down  L t,  e 

of  the  parties  freed  the  other  parties  rnutb Ln  ^I 
union  of  people  under  one  constitution,  the  nature  of  the  pact  had  always  bee^ 
nderstood  to  exclude  such  an  interpretation.”  Elliot,  V.  355  356 

Connecticut  Delaware,  and  Mai-ylaud  voted  for  an  ameiidment  to  the  orio- 
y 1 olution,  winch  if  adopted,  would  have  submitted  the  Constitution  to  he 
11  it  to  assemblies  chosen  for  the  pur 

on  ^Lel  wa.r*’  ""  -^-^opted,  with  the  dissent  of  one  site' 


^32  CONSTITUTIONAL  HISTORY. 

Still,  the  resolution  under  consideration  contained  a feature 
which  wisely  provided  for  the  assent  of  the  existing  Congress  to 
the  changes  that  were  to  be  made  by  the  establishment  of  the  new 
system.  It  proposed  that  the  plan  of  the  new  Constitution  should 
be  first  submitted  to  Congress  for  its  approbation,  and  that  the 
legislatures  of  the  states  should  then  recommend  to  the  people  to 
institute  assemblies  to  consider  and  decide  on  its  adoption.  These 
steps  were  to  be  taken  in  pursuance  of  the  course  marked  out 
when  the  Convention  was  called.  The  resolution  of  Congress 
which  recommended  the  Convention  required  that  the  alterations 
which  it  might  propose  should  be  “agreed  to  in  Congress  and 
confirmed  by  the  states and  such  was  the  tenor  of  the  instruc- 
tions given  to  the  delegates  of  most  of  the  states.  This  direction 
would  be  substantially  complied  with  if  the  legislatures,  on  receiv- 
ino-  and  considering  the  system,  should  recommend  to  the  people 
to°appoint  representative  bodies  to  consider  and  decide  on  its 
adoption,  and  the  people  should  so  adopt  and  ratify  it. 

The  topics  covered  by  the  report  of  the  committee  of  the 
whole  had  thus  been  passed  upon  in  the  Convention,  and  the  out- 
line of  the  Constitution  had  been  framed.  There  remained  on  y 
three  subjects  on  which  it  would  be  necessary  to  act  m order  to 
provide  for  a complete  scheme  of  government.  It  was  necessary 
to  determine  the  number  of  senators  to  which  each  state  shouk 
be  entitled;  to  ascertain  the  qualifications  of  members  of  the 
government;  and  to  determine  at  what  place  the  government 
should  be  seated. 

The  number  of  senators  was  not  agreed  upon  at  the  time 
when  tlie  principle  of  an  equal  representation  of  the  states  m the 
senate  was  adopted.;  and  it  had  not  been  determined  in  what 
method  they  were  to  vote.  It  was  now  settled  that  the  Senate 
should  consist  of  two  members  from  each  branch,  and  that  they 
should  vote  fer  capita.  To  this  arrangement  one  state  only  dis- 
sented. The  vote  of  Maryland  was  given  against  it,  through  the 
influence  of  Luther  Martin,  who  considered  this  method  of  voting 
a departure  from  the  idea  of  the  states  being  represented  in  the 
Senate.  But  this  objection  was  obviously  unsound ; for  althoug  i, 


. For  the  history  of  the  proceedings  relating  to  the  institution  of  tl.e  national 
Convention,  sec  ante,  Chap.  XV. 


PKOPEHTY  QUALIFICATION  POK  OFFICE.  433 

l>y  tins  method  of  voting,  tlio  influence  of  a state  may  bo  divided, 
Its  members  have  the  powm-  to  concur,  and  to  make  the  vote  of 
the  state  more  etfectual  tlian  it  would  be  if  it  had  only  a sino-le 
suffrao-e.  ‘ ^ 

o 

I’he  subject  of  the  qualifications  to  be  required  of  the  exec- 
utive, tiie  judiciary,  and  the  members  of  both  branches  of  the 
legislature  went  to  the  committee  of  detail  in  a form  which  was 
subsequently  modified  in  a very  important  particular.  It  was  at 
first  proposed ' that  landed  property,  as  well  as  citizenship  in  the 
United  States,  should  be  embraced  in  the  qualifications.  But 
there  were  solid  objections  to  this  requirement,  founded  on  the 
circumstances  of  the  country  and  the  nature  of  a republican  con- 
stitution. So  far  as  the  people  of  the  United  States  could  be  said 
to  be  divided  into  classes,  the  principal  divisions  related  to  the 
three  occupations  of  agriculture,  commerce,  and  manufactures  of 
all  kinds,  including  in  the  latter  all  who  exercised  the  mechanic 
arts.  As  a general  rule  it  was  supposed  at  that  time  to  be  true, 
that  the  commercial  and  manufacturing  classes  held  very  little 
landed  property;  and  that  although  they  were  much  less  numer- 
ous than  the  agricultural  class,  yet  that  they  were  likely  to  in- 
crease m a far  greater  ratio  than  they  had  hitherto.  Practically, 
therefore,  to  require  a qualification  of  landed  property  would  be 
to  give  the  offices  of  the  general  government  to  the  agricultural 
interest.  These  considerations  led  the  Convention,  by  a nearly 
unanimous  vote,  to  reject  the  proposition  for  a landed  quali- 
fication.^  ^ 

Very  serious  doubts  were  also  entertained,  whether,  in  con- 
structing a republican  constitution,  it  was  proper  to  pay  so  much 
deference  to  distinctions  of  wealth  as  would  be  implied  by  the 
adoption  of  any  property  qualification  for  office.  There  are  two 
methods  in  which  the  interests  of  property  may  be  secured  in  the 
organization  of  a representative  government.  It  may  be  required 
as  a qualification,  either  of  the  elector  or  the  elected,  that  the  in- 
dividual shall  possess  a certain  amount  of  property.  But  it  seems 
scarcely  consistent  with  the  spirit  of  a republican  constitution 
that  this  should  be  made  a qualification  for  holding  office,  although 
it  may  be  quite  proper  to  require  some  degree  of  property,  or  its 


‘ By  Mason. 

I.— 28 


2 Maryland  alone  voted  to  retain  it. 


434  CONSTITUTIONAL  HISTORY. 

e(^uivalGTit  eviclGncG  of  moral  fitiiGss,  as  a qualification  for  the 
right  of  choosing  to  office.  The  solid  reason  for  a distinction  is, 
that,  in  order  to  have  a property  qualification  for  office  at  all  effi- 
cient, or  even  of  any  perceptible  operation,  it  must  be  made  so 
large  that  it  will  tend  to  exclude  persons  of  real  talent,  or  even  the 
highest  capacity  for  the  public  service.  Whereas,  a property  qual- 
ification may  be  applied  to  the  exercise  of  the  elective  franchise, 
by  requiring  so  small  an  amount  that  it  will  practically  exclude 
but  few  who  possess  the  moral  requisites  for  its  intelligent  and 
honest  use ; and  even  to  this  extent  the  operation  of  such  a rule 
may  be,  as  it  is  in  some  Avell-governed  communities,  greatly  re- 
lieved, by  substituting  for  the  positive  possession  of  any  amount 
of  property  that  species  of  evidence  of  moral  fitness  for  the  right 
of  voting  that  is  implied  by  the  capacity  to  pay  a very  small  poi- 
tion  of  the  public  burdens.' 

At  the  present  stage,  however,  of  the  formation  of  the  Con- 
stitution of  the  United  States,  the  opinions  of  a majority  of  the 
states  were  in  favor  of  a property  qualification  for  office,  as  well 
as  a requirement  of  citizenship ; and  the  committee  of  detail  were 
instructed  accordingly,  with  the  dissent  of  only  three  of  the 
states.^  But,  as  we  shall  afterwards  find,  another  view  of  the 
subject  finally  prevailed.' 

No  definite  action  was  had,  at  this  stage,  upon  the  subject  of 
a seat  of  the  national  government ; but  it  was  almost  unanimously 
agreed  to  be  the  general  sense  of  the  country  that  it  ought  not  to 
be  placed  at  the  seat  of  any  state  government,  or  in  any  large 
commercial  city ; and  that  provision  ought  to  be  made  by  Con- 
gress, as  speedily  as  possible,  for  the  establishment  of  a national 
seat  and  the  erection  of  suitable  public  buildings. 

Such  was  the  character  of  the  system  sent  to  a committee  of 
detail,  to  be  put  into  the  form  of  a constitution.^  Before  it  was 
sent  to  them,  however,  notice  was  given  by  an  eminent  Southern 

> As  in  the  state  of  Massachusetts ; where  the  sole  money  qualification  re- 
quired of  a voter  is  the  payment  of  an  annual  poll-tax  of  $1.25,  or  about  five 
shillings  sterling. 

2 Connecticut,  Pennsylvania,  and  Delaware. 

= See  the  title  “Qualifications”  in  the  Index. 

4 The  committee  of  detail,  appointed  July  24th,  consisted  of  Messrs.  Rutledge, 
Randolph,  Gorham,  Ellsworth,  and  Wilson.  Elliot,  V.  357. 


435 


OUTLINE  OF  THE  CONSTITUTION. 

member,  whicli  looked  to  the  introduction  of  ])rovisions  not  yet 
cmitcmplated  or  discussed.  According  to  Mr.  Madison’s  minutes, 
(Teneral  Pinckney  rose  and  reminded  the  Convention  that,  if  the 
committee  sliould  fail  to  insert  some  security  to  the  Southern 
States  against  an  emancipation  of  slaves,  and  taxes  on  exports  he 
should  be  bound  by  duty  to  his  state  to  vote  against  their  report ' 
The  resolutions  as  adopted  by  the  Convention,  together  with 
the  propositions  offered  by  Mr.  Charles  Pinckney  on  the  29th  of 
May , and  tliose  offered  by  Mr.  Patterson  on  the  15th  of  June 
were  then  referred  to  a committee  of  detail.”  ’ 


> By  a security  against  an  emancipation  of  slaves,  General  Pinckney  meant 
some  provision  for  tiieir  extradition  in  cases  of  escape  into  the  free  states.  This 
IS  apparent  from  the  liistory  of  the  extradition  clause;  and  it  is  upon  the  notice 
thus  given  by  him,  and  the  action  had  upon  this  clause,  that  the  statement 
often  made,  which  assumes  that  the  Constitution  could  not  have  been  estab- 
lished without  some  provision  on  this  subject— as  well  as  upon  general  reason- 
ing from  the  circunistauces  of  the  case— rests  for  its  proof  See  as  to  the  origin 
and  history  of  the  extradition  cjai^,  post,  p.  602. 

""  The  resolutions,  as  referred,  were  as  follows  : 

“ 1.  Semlted,  That  the  government  of  the  United  States  ought  to  consist  of 
a supreme  legislative,  judiciary,  and  executive. 

“ a.  Resolved,  That  the  legislature  consist  of  two  branches. 

“ 3 ResoM,  That  the  members  of  the  first  branch  of  the  legislature  ouglit 
to  be  elected  by  the  people  of  the  several  states  for  the  term  of  two  years-  to  be 
paid  out  of  the  public  treasury;  to  receive  an  adequate  compensation  for  their 
services;  to  be  of  the  age  of  twenty-five  years  at  least;  to  be  ineligible  to,  and 
incapable  of  holding,  any  office  under  the  authority  of  the  United  States  (except 
those  peculiarly  belonging  to  the  functions  of  the  first  branch)  during  the  term 
of  service  of  the  first  branch.  r,  « m 

tlie'lf'-r'^rsit’f’  branch  of  the  legislature  of 

United  States  ought  to  be  chosen  by  the  individual  legislatures ; to  be  of  the 

age  of  thirty  years  at  least;  to  hold  their  offices  for  six  years,  one  third  to  go 
out  biennially ; to  receive  a compensation  for  the  devotion  of  their  time  to  the 
public  service;  to  be  ineligible  to,  and  incapable  of  holding,  any  office  under 
the  authonty  of  the  United  States  (except  those  peculiarly  belonging  to  the 
unctions  of  the  second  branch)  during  the  term  for  whieh  thev  are  elected  and 
lor  one  year  thereafter.  " ’ 

^ct“5-  Resolved,  That  each  branch  ought  to  possess  the  right  of  originating 

“ 6.  Resolved,  That  the  national  legislature  ought  to  possess  the  leo-islative 
lights  vested  111  Congress  by  the  Confederation;  and,  moreover,  to  le-rislate  in 
cases  for  the  general  interests  of  the  Union,  and  also  in  those  to  which  the 


43G 


CONSTITUTIONAL  HISTORY. 


states  are  separately  incompetent,  or  in  which  the  liarmony  of  the  United  States 
may  be  interrupted  by  the  exercise  of  individual  legislation. 

“ 7.  Besolved,  That  the  legislative  acts  of  the  United  States,  made  by  virtue 
and  in  pursuance  of  the  Articles  of  Union,  and  all  treaties  made  and  ratified 
under  the  authority  of  the  United  States,  shall  be  the  supreme  law  of  the  re- 
spective states,  as  far  as  those  acts  or  treaties  shall  relate  to  the  said  states,  or 
their  citizens  and  inhabitants;  and  that  the  judiciaries  of  the  several  states 
shall  be  bound  thereby  in  their  decisions,  anything  in  the  respective  laws  of  the 
individual  states  to  the  contrary  notwithstanding. 

“8.  Resolved^  That,  in  the  original  formation  of  the  legislature  of  the  United 
States,  the  first  branch  thereof  shall  consist  of  sixty-five  members;  of  which 
number,  New  Hampshire  shall  send  three;  Massachusetts,  eight;  Rhode  Island, 
one;  Connecticut,  five  ; New  York,  six;  New  Jersey,  four ; Pennsylvania,  eiglit ; 
Delaware,  one;  Maryland,  six ; Virginia,  ten;  North  Carolina,  five  ; South  Caro- 
lina, five ; Georgia,  three.  But  as  the  present  situation  of  the  states  may  prob- 
ably alter  in  the  number  of  tlieir  inhabitants,  the  legislature  of  tiie  United  States 
shall  be  authorized,  from  time  to  time,  to  apportion  tlie  number  of  representa- 
tives; and  in  case  any  of  the  states  shall  hereafter  be  divided,  or  enlarged  by 
addition  of  territory,  or  any  two  or  more  states  united,  or  any  new  states  created 
within  the  limits  of  the  United  States,  the  legislature  of  the  United  States  shall 
possess  autliority  to  regulate  the  number  of  representatives,  in  any  of  the  fore- 
going cases,  upon  the  principle  of  their  number  of  inhabitants,  according  to  the 
provisions  hereafter  mentioned,  namely  : Provided  always  that  representation 
ought  to  be  proportioned  to  direct  taxation.  And  in  order  to  ascertain  the  al- 
teration in  the  direct  taxation  which  may  be  required  from  time  to  time  by  the 
changes  in  the  relative  circumstances  of  the  states — 

9.  ResoUed,  That  a census  be  taken  within  six  years  from  the  first  meeting  of 
the  legislature  of  the  United  States,  and  once  witldn  the  term  of  every  ten  years 
afterwards,  of  all  the  inhabitants  of  the  United  States,  in  the  manner  and  accord- 
ing to  the  ratio  recommended  by  Congress  in  their  resolution  of  the  18th  of 
April,  1783;  and  that  the  legislature  of  the  United  States  shall  proportion  tlie 
direct  taxation  accordingly. 

“ 10.  Resolved,  That  all  bills  for  raising  or  appropriating  money,  and  for  fixing 
the  salaries  of  tlie  officers  of  the  government  of  the  United  States,  shall  origi- 
nate in  the  first  branch  of  the  legislature  of  the  United  States,  and  sluill  not  be 
altered  or  amended  by  the  second  branch;  and  that  no  money  shall  be  drawn 
from  the  public  treasury,  but  in  pursuance  of  appropriations  to  be  originated  by 
the  first  branch. 

“ 11.  Resolved,  That,  in  the  second  branch  of  the  legislature  of  the  United 

States,  each  state  shall  have  an  equal  vote. 

“ 12.  Resolved,  That  a national  executive  be  instituted,  to  consist  of  a single 
person ; to  be  chosen  by  the  national  legislature,  for  the  term  of  seven  years;  to 
be  ineligible  a second  time;  with  power  to  carry  into  execution  the  national 
laws;  to  appoint  to  offices  in  cases  not  otherwise  provided  for;  to  be  remova- 
ble on  impeachment  and  conviction  of  malpractice  or  neglect  of  duty;  to  re- 


OUTLINE  OF  THE  CONSTITUTION. 


137 


ceive  a fi.xed  compensation  for  the  devotion  of  his  time  to  the  i)uhlic  service  to 
he  paid  out  ol  the  public  treasuiy.  ’ 

“ 13.  liesoUed,  That  the  national  executive  shall  have  a right  to  ne^rative  any 
lepslative  act;  which  shall  not  be  afterwards  passed,  unless  by  two  third  parts 
ot  each  branch  ot  the  national  legislature. 

“ 14.  Resolced,  That  a national  judiciary  be  cstablislied,  to  consist  of  one  su- 
premo tribunal,  the  judges  of  which  shall  be  appointed  by  the  second  branch  of 
tile  national  legislature;  to  hold  their  offices  during  good  behavior;  to  receive 
punctually,  at  stated  times,  a fl.'ied  compensation  for  tlieir  services,  in  which  no 
dmimid, on  shall  be  made  so  as  to  affect  the  persons  actually  in  office  at  the 
time  of  such  diminution. 

^ “ lo  Eesohed,  That  the  national  legislature  be  empowered  to  aiipoint  infe^ 
nor  tribunals.  ^ 

“ n.  Besohed,  That  the  jurisdiction  of  the  national  judiciary  shall  extend  to 
cases  arising  under  laws  passed  by  the  general  legislature;  and  to  such  other 
questions  as  involve  the  national  peace  and  harmony. 

“17.  Resohed,  That  provision  ought  to  be  made  for  the  admission  of  states 
lawfully  arising  within  the  limits  of  the  United  States,  whether  from  a voluntary 
junction  of  government  and  territory  or  otherwise,  with  the  consent  of  a num- 
ber of  voices  in  the  national  legislature  less  than  the  whole. 

“ m Resohed,  That  a republican  form  of  government  shall  be  guaranteed  to 
violLme  ’ “ and  domestic 

“19.  Resohed,  That  provision  ought  to  be  made  for  the  amendment  of  the 
Ai tides  of  Uniou,  whensoever  it  shall  seem  necessary. 

“ 30.  Resolved,  That  the  legislative,  executive,  and  judiciary  powers  within 
le  several  states,  and  of  tlie  national  government,  ought  to  be  bound,  by  oath 

to  support  the  Articles  of  Union.  ^ ’ 

atio ' f amendments  which  shall  be  offered  to  the  Confeder- 
ation by  the  Convention  ought,  at  a proper  time  or  times,  after  the  approbation 
of  Congress,  o be  submitted  to  an  assembly  or  assemblies  of  representatives 
recommended  by  the  several  legislatures,  to  be  expressly  chosen  by  the  people 
to  consider  and  decide  thereon.  ^ ^ 

of  H '■'^presentation  in  the  second  branch  of  the  legislature 

-^0  ehau t:: 

“ 33  Resolved,  That  it  be  an  instruction  to  the  committee  to  whom  were  re 
fe.ied  the  proceedings  of  the  Convention  for  the  establishment  of  a national 
government,  to  receive  a clause,  or  clauses,  requiring  certain  qualificatrns  of 
property  and  citizenship  in  the  United  States,  for  the  executive,  the  judiciary 
and  the  members  of  both  branches  of  the  legislature  of  the  United  States.” 


CHAPTER  XXY. 

Report  of  the  Committee  of  Detail. — Construction  of  the  Legis- 
lature.— Time  and  Place  of  its  Meeting. 

Having  now  reached  that  stage  in  the  process  of  framing  the 
Constitution  at  which  certain  principles  were  confided  to  a com- 
mittee of  detail,  the  reader  will  now  have  an  opportunity  to  ob- 
serve the  further  development  and  application  of  those  principles, 
the  mode  in  which  certain  chasms  in  the  system  were  supplied, 
and  the  final  arrangements  which  produced  the  complete  instru- 
ment that  was  submitted  to  the  people  of  the  United  States  for 
their  adoption. 

Great  power  was  necessarily  confided  to  a committee  to  whom 
was  intrusted  the  first  choice  of  means  and  of  terms  that  were  to 
give  practical  effect  to  the  principles  embraced  in  the  resolutions 
of  the  Convention.  There  might  be  a substantial  compliance  with 
the  intentions  previously  indicated  by  the  debates  and  votes  of 
the  Convention,  and  at  the  same  time  the  mode  in  which  those  in- 
tentions should  be  carried  out  by  the  committee  might  require  a 
new  consideration  of  the  subjects  involved.  Hence  it  is  impor- 
tant to  pursue  the  growth  of  the  Constitution  through  the  entire 
proceedings. 

The  committee  of  detail  presented  their  report  on  the  6th  of 
August,  in  the  shape  of  a Constitution  divided  into  three-and- 
twelity  articles.  It  is  not  my  purpose  to  examine  this  instrument 
in  the  precise  order  of  its  various  provisions,  or  to  describe  all  the 
discussions  which  took  place  upon  its  minute  details.  It  is  moie 
consonant  with  the  general  purpose  of  this  history  to  group  to- 
gether the  different  features  of  the  Constitution  which  relate  to 
the  structure  and  powers  of  the  different  departments  and  to  the 
fundamental  purposes  of  the  new  government.* 

’ The  first  draft  of  the  Constitution,  reported  by  the  committee  of  detail,  will 
be  found  in  the  Appendix. 


IMMIGRATION  FROM  ABROAD. 


439 


In  accordance  with  the  previous  decisions  of  the  Convention, 
the  committee  of  detail  had  provided  that  the  legislative  power  of 
the  United  States  should  be  vested  in  a Congress,  to  consist  of 
two  branches,  a House  of  Kepresentatives  and  a Senate,  each  of 
which  should  have  a negative  on  the  other.  But  as  to  the  persons 
by  whom  the  members  of  the  national  legislature  were  to  be  ap- 
pointed, no  decision  had  been  made  in  the  Convention,  excepting 
tliat  the  members  of  the  House  were  to  be  chosen  by  the  people 
of  the  states,  and  the  members  of  the  Senate  by  their  legislatures. 
Nothing  had  been  settled  respecting  the  qualifications  of  the  elec- 
tors of  representatives ; nor  had  the  qualifications  of  the  members 
of  either  branch  been  determined.*  Two  great  questions,  there- 
fore, remained  open ; first,  with  what  class  of  persons  was  the 
election  of  members  of  the  popular  branch  of  the  legislature  to  be 
lodged  ; secondly,  what  persons  were  to  be  eligible  to  that  and  to 
the  other  branch.  In  substance  these  questions  resolved  them- 
selves into  the  inquiry,  in  whom  was  the  power  of  governing 
America  to  be  vested  ? for  it  is  to  be  remembered  that,  according 
to  a decision  of  the  Convention  not  yet  reversed,  the  national  ex- 
ecutive was  to  be  chosen  by  the  national  legislature. 

So  far  as  the  people  of  the  United  States  had  evinced  any  dis- 
tinct purpose,  at  the  time  when  this  Convention  was  assembled,  it 
appeared  to  be  well  settled  that  the  new  system  of  government, 
V hatever  else  it  might  be,  should  be  republican  in  its  form  and 
spirit.  When  the  states  had^  assembled  in  Convention  it  became 
the  result  of  a necessary  compromise  between  them  that  the  ap- 
pointment of  one  branch  of  the  legislature  should  be  vested  in  the 
people  of  the  several  states.  But  who  were  to  be  regarded  as  the 
people  of  a state,  for  this  purpose,  was  a question  of  great  magni- 
tude, now  to  be  considered. 

The  situation  of  the  country,  in  reference  to  this  as  well  as  to 
many  other  important  questions,  was  peculiar.  The  streams  of 
emigration,  which  began  to  flow  into  it  from  Europe  at  the  first 
settlement  of  the  different  colonies,  had  been  interrupted  only  by 
the  war  of  the  Kevolution.  On  the  return  of  peace  the  tide  of 


* A general  instruction  had  been  given  to  report  “certain  qualifications  of 
in-operty  and  citizenship,”  for  the  executive,  the  judiciary,  and  the  members  of 
both  houses  of  Congress. 


440 


CONSTITUTIONAL  HISTORY. 


emigration  again  began  to  set  towards  the  new  states,  which  had 
risen  into  independent  existence  on  the  w’^estern  shores  of  the 
Atlantic  by  a struggle  for  freedom  that  had  attracted  the  atten- 
tion of  the  whole  civilized  world ; and  when  the  Constitution  of 
the  United  States  was  about  to  be  framed,  large  and  various  classes 
of  individuals  in  the  different  countries  of  Europe  were  eagerly 
watching  the  result  of  the  experiment.  It  appeared  quite  certain 
that  great  accessions  of  population  would  follow  the  establishment 
of  free  institutions  in  America,  if  they  should  be  framed  in  a lib- 
eral and  comprehensive  spirit.  It  became  necessary,  therefore,  to 
meet  and  provide  for  the  presence  in  the  country  of  great  masses 
of  persons  not  born  upon  the  soil,  who  had  not  participated  in  the 
efforts  by  which  its  freedom  had  been  acquired,  and  who  would 
bring  with  them  widely  differing  degrees  of  intelligence  and  of  fit- 
ness to  take  part  in  the  administration  of  a free  government.  The 
place  that  was  to  be  assigned  to  these  persons  in  the  political  sys- 
tem of  the  country  was  a subject  of  much  solicitude  to  its  best  and 
most  thoughtful  statesmen. 

On  the  one  hand,  all  were  aware  that  there  existed  among  the 
native  populations  of  the  states  a very  strong  American  feeling, 
engendered  by  the  war,  and  by  the  circumstances  attending  its 
commencement,  its  progress,  and  its  results.  It  was  a war  begun 
and  prosecuted  for  the  express  purpose  of  obtaining  and  securing, 
for  the  people  who  undertook  it,  the  right  of  self-government.  It 
necessarily  created  a great  jealousy  of  foreign  influence,  whether 
exerted  by  governments  or  individuals,  and  a strong  fear  that  in- 
dividuals would  be  made  the  agents  of  governments  in  the  exercise 
of  such  influence.  The  political  situation  of  the  country  under  the 
Confederation  had  increased  rather  than  diminished  these  appre- 
hensions. The  relations  of  the  states  with  each  other  and  with 
foreign  nations,  under  a system  which  admitted  of  no  efficient 
national  legislation  binding  upon  all  alike,  afforded,  or  were  be- 
lieved to  afford,  means  by  which  the  policy  of  other  countries 
could  operate  on  our  interests  with  irresistible  force. 

There  was,  therefore,  among  the  people  of  the  United  States, 
and  among  their  statesmen  who  were  intrusted  with  the  formation 
of  the  Constitution,  a firmly  settled  determination  that  the  insti- 
tutions and  legislation  of  the  country  should  be  effectually  guarded 
against  foreign  control  or  interference. 


RIGHT  OF  SUFFRAGE. 


441 

On  tlie  otlier  liaml,  it  was  extremely  imiiortant  that  nothing 
should  be  done  to  prevent  the  immigration  from  Euroj)e  of  any 
classes  of  men  wlio  were  likely  to  become  useful  citizens.  The 
states  which  had  most  encouraged  such  immigration  had  advanced 
most  rapidly  in  population,  in  agriculture,  and  tlie  arts.  There 
were,  too,  already  in  the  country  many  persons  of  foreign  birth 
who  had  thoroughly  identified  themselves  with  its  interests  and 
its  fate,  who  had  fought  in  its  battles,  or  contributed  of  their 
means  to  the  cause  of  its  freedom ; and  some  of  these  men  were 
at  this  very  period  high  in  the  councils  of  the  nation,  and  even  oc- 
cupied places  of  great  importance  in  the  Convention  itself.'  They 
liad  been  made  citizens  of  the  states  in  which  they  resided,  by  the 
state  poll  er  of  naturalization ; and  they  were  in  every  important 
sense  Americans.  It  was  impossible,  therefore,  to  adopt  a rule 
that  would  confine  the  elective  franchise,  or  the  right  to  be  elected 
to  office,  to  the  native  citizens  of  the  states.  The  states  themselves 
had  not  done  this ; and  the  institutions  of  the  United  States  could 
not  rest  on  a narrower  basis  than  the  institutions  of  the  states. 

Another  difficulty  which  attended  the  adjustment  of  the  right 
of  suffrage  grew  out  of  the  widely  differing  qualifications  annexed 
to  that  right  under  the  state  constitutions,  and  the  consequent  dis- 
satisfaction that  must  follow  any  effort  to  establish  distinct  or 
special  qualifications  under  the  national  Constitution.  In  some  of 
the  states  the  right  of  voting  was  confined  to  “ freeholders in 
otheis  and  by  far  the  greater  number — it  was  extended  beyond 
the  holders  of  landed  property,  and  included  many  other  classes 
of  the  adult  male  population ; while  in  a few  it  embraced  every 
male  citizen  of  full  age  who  was  raised  at  all  above  the  level  of 
the  pauper  by  the  smallest  evidence  of  contribution  to  the  pubhc 
burdens.  The  consequence,  therefore,  of  adopting  any  separate 
sptem  of  qualifications  for  the  right  of  voting  under  the  Constitu- 
tion of  the  United  States  would  have  been  that,  in  some  of  the 
states,  there  would  be  persons  capable  of  voting  for  the  highest 
state  officers,  and  yet  not  permitted  to  vote  for  any  officer  of  the 


' It  is  only  necessary  to  mention  the  names  of  Hamilton,  Wilson,  Robert 
Morns,  and  Fitzsimmons,  to  show  the  entire  impracticability  of  a rule  that 
would  have  excluded  all  persons  of  foreign  Urth  from  being  electors,  or  from 
being  elected  to  office. 


442  CONSTITUTIONAL  HISTORY. 

United  States;  and  that  in  the  other  states  persons  not  admitted 
to  the  exercise  of  the  right  under  the  state  constitution  might  have 
enjoyed  it  in  national  elections. 

This  embarrassment,  however,  did  not  extend  to  the  qualifica- 
tions which  it  might  be  thought  necessary  to  establish  for  the  right 
of  being  elected  to  office  under  the  general  government.  As  the 
state  and  the  national  governments  were  to  be  distinct  systems, 
and  the  officers  of  each  were  to  exercise  very  different  functions, 
it  w^as  both  practicable  and  expedient  for  the  Constitution  of  the 
United  States  to  define  the  persons  who  should  be  eligible  to  the 
offices  which  it  created. 

At  the  same  time,  in  relation  to  both  of  these  rights  that  of 
electing  and  that  of  being  elected  to  national  offices— it  was  highly 
necessary  that  the  national  authority,  either  by  direct  provision  of 
the  Constitution,  or  by  a legislative  power  to  be  exercised  under 
it,  should  determine  the  period  when  the  rights  of  citizenship  could 
be  acquired  by  persons  of  foreign  birth.  From  the  first  establish- 
ment of  the  state  governments  down  to  the  present  period  those 
governments  had  possessed  the  power  of  naturalization.  Their 
rules  for  the  admission  of  foreigners  to  the  privileges  of  citizen- 
ship were  extremely  unlike;  and  if  the  power  of  prescribing  the 
rule  were  to  be  left  to  them,  and  the  Constitution  of  the  United 
States  were  to  adopt  the  qualifications  of  voters  fixed  by  the  laws 
of  the  states,  or  were  to  be  silent  with  respect  to  the  qualifications 
of  its  own  officers,  the  rights  both  of  electing  and  of  being  elected 
to  national  office  would,  in  respect  to  citizenship,  be  regulated  by 
no  uniform  principle.  If,  therefore,  the  right  of  voting  for  any 
class  of  federal  officers  were  to  be  in  each  state  the  same  as  that 
iriven  by  the  state  laws  for  the  election  of  any  class  of  state  offi- 
cers, it  was  quite  essential  that  the  states  should  surrender  to  the 
general  government  the  power  to  determine,  as  to  persons  of  foreign 
birth,  what  period  of  residence  in  the  country  sliould  be  required 
for  the  rights  of  citizenship.  It  was  equally  necessary  that  the 
national  government  should  possess  this  power,  if  it  was  intended 
that  citizenship  should  be  regarded  at  all  in  the  selection  of  those 
who  were  to  fill  the  national  offices. 

The  committee  of  detail,  after  a review  of  all  these  considera- 
tions, presented  a scheme  that  was  well  adapted  to  meet  the  diffi- 
culties of  the  case.  They  proposed  that  the  same  persons  who,  by 


RULE  OF  SUFFRAGE.  443 

tlie  liuvs  of  the  several  states,  were  admitted  to  vote  for  members 
of  the  most  numerous  branch  of  their  own  legislatures,  sliould  have 
the  right  to  vote  for  tlie  representatives  in  Congress.  The  adop- 
tion of  this  principle  avoided  the  necessity  of  disfranchising  any 
portion  of  the  people  of  a state  by  a system  of  qualifications  un- 
known to  their  laws.  As  the  states  were  the  best  judges  of  the 
circumstances  and  temper  of  their  own  people,  it  was  certainly 
best  to  conciliate  them  to  the  support  of  the  new  Constitution  by 
this  concession.  It  was  possible,  indeed,  but  not  very  probable, 
that  they  might  admit  foreigners  to  the  right  of  voting  without 
the  previous  qualification  of  citizenship.  It  was  possible,  too,  that 
they  miglit  establish  universal  suffrage  in  its  most  unrestricted 
sense.  But  against  all  these  evils  there  existed  one  great  security  : 
namely,  that  the  mischiefs  of  an  absolutely  free  suffrage  would  be 
felt  most  severely  by  themselves  in  their  domestic  concerns ; and 
against  the  special  danger  to  be  apprehended  from  the  indiscrim- 
inate admission  of  foreigners  to  the  right  of  voting,  another  feature 
o the  proposed  plan  gave  the  national  legislature  power  to  with- 
hold from  persons  of  foreign  birth  the  privileges  of  general  citizen- 
ship,  although  a state  might  confer  upon  them  the  power  of  voting 
Avithout  previous,  naturalization. 

This  part  of  the  scheme  consisted  in  the  transfer  of  the  power 
of  naturalization  to  the  general  government ; a power  that  was 
necessarily  made  exclusive,  by  being  made  a power  to  establish  a 
uniform  rule  on  the  subject. 

These  provisions  were  not  only  necessary  in  the  actual  situa- 
tion of  the  states,  but  they  were  also  in  harmony  with  the  great 
purpose  of  the  representative  system  that  had  been  agreed  upon 
as  the  basis  of  one  branch  of  the  legislative  power.  In  that  branch 
e people  of  each  state  were  to  be  represented ; but  they  were  to 
remain  the  people  of  a distinct  community,  whose  modes  of  exer- 
cising the  right  of  self-government  would  be  peculiar  to  themselves ; 
and  that  would  obviously  be  the  most  successful  representation  of 
such  a people  in  a national  assembly  which  most  conformed  itself 
to  their  habits  and  customs  in  the  organization  of  their  own  legis- 
ative  bodies.  Accordingly,  although  very  strenuous  efforts  were 
made  to  introduce  into  the  Constitution  of  the  United  States  par- 
ticular theories  with  regard  to  popular  suffrage— some  of  the  mem- 
eis  being  in  favor  of  one  restriction  and  some  of  another the 


444:  CONSTITUTIONAL  HISTORY. 

tuIg  which  referred,  the  right  in  ench  sts^te  to  its  domestic  Is/W  W3;S 
’sustained  by  a large  majority  of  the  Convention.  But  the  power 
that  was  given,  by  unanimous  consent,  over  the  subject  of  nat- 
uralization, shows  the  strong  purpose  that  was  entertained  of  vest- 
ing in  the  national  authority  an  efficient  practical  control  over  the 
states  in  respect  to  the  political  rights  to  be  conceded  to  persons 
not  natives  of  the  country.' 

As  we  have  already  seen,  the  committee  of  detail  had  been 
instructed  to  report  qualifications  of  property  and  citizenship  for 
the  members  of  every  department  of  the  government.  But  they 
found  the  subject  so  embarrassing  that  they  contented  them- 
selves with  providing  that  the  legislature  of  the  United  States 
should  have  authority  to  establish  such  uniform  qualifications 
for  the  members  of  each  house,  with  regard  to  property,  as  they 
might  deem  expedient."  They  introduced,  however,  into  their 
draft  of  a Constitution,  an  express  provision  that  every  mem- 
ber of  the  House  of  Kepresentatives  should  be  of  the  age  of 
twenty-five  years  at  least,  should  have  been  a citizen  of  the 
United  States  for  at  least  three  years  before  his  election,  and 
should  be,  at  the  time  of  his  election,  a resident  in  the  state  in 
which  he  might  be  chosen." 

A property  qualification  for  the  members  of  the  House  of 
Representatives  was  a thing  of  far  less  consequence  than  the  fact 
of  citizenship.  Indeed,  there  might  well  be  a doubt  whether  a 
requisition  of  this  kind  would  not  be  in  some  degree  inconsistent 
with  the  character  that  had  already  been  impressed  upon  the  gov- 
ernment by  the  compromise  which  had  settled  the  nature  of  the 
representation  in  the  popular  branch.  It  was  to  be  a representa- 
tion of  the  people  of  the  states  ; and  as  soon  as  it  was  determined 
that  the  right  of  suffrage  in  each  state  should  be  just  as  broad  as  the 
legislative  authority  of  the  state  miglit  see  fit  to  make  it,  the  basis 
of  the  representation  became  a democracy,  without  any  restric- 
tions save  those  which  the  people  of  each  state  might  impose 


1 I have  called  tlie  naturalization  power  a practical  control  upon  the  states  m 
the  matter  of  suffrage.  It  is  indirect,  but  it  is  effectual;  for  I believe  th.at  no 
state  has  ever  gone  so  far  as,  by  express  statutory  or  constitutional  provision,  to 
admit  to  the  right  of  voting  persons  of  foreign  birth  who  are  not  naturalized 
citizens  of  the  United  States.  ^ 

* Art.  VI.  Sect.  2 of  the  reported  draft.  ® 


REQUISITE  OF  PREVIOUS  CITIZENSHIP.  445 

upon  it  for  tliemselves.  If,  tlien,  the  Constitution  were  to  refrain 
from  imposing  on  the  electors  a })roperty  qualification,  for  the 
very  purpose  of  including  all  to  whom  the  states  might  concede 
the  right  of  voting  within  their  respective  limits,  thus  excluding 
the  idea  of  a special  representation  of  property,  it  was  certainly 
not  necessary  to  require  the  possession  of  property  by  the  repre- 
sentatives, or  to  clothe  the  national  legislature  with  power  to 
esUiblish  such  a qualification.  The  clause  reported  by  the  com- 
mittee of  detail  for  this  purpose  was  accordingly  left  out  of  the 
, Constitution.' 

But  with  respect  to  citizenship,  as  a requisite  for  the  office  of 
a representative  or  a senator,  very  different  considerations  applied. 
With  whatever  degree  of  safety  the  states  might  be  permitted  to 
determine  who  should  vote  for  a representative  in  the  national 
legislature,  it  was  necessary  that  the  Constitution  itself  should 
meet  and  decide  the  grave  questions,  whether  persons  of  foreign 
birth  should  be  eligible  at  all,  and  if  so,  at  what  period  after  they 
had  acquired  the  general  rights  of  citizens.  It  seems  highly  prob-- 
able,  from  the  known  jealousies  and  fears  that  were  entertained 
of  foreign  influence,  that  the  eligibility  to  office  would  have  been 
strictly  confined  to  natives,  but  for  a circumstance  to  which  allu- 
sion has  already  been  made.  The  presence  of  large  numbers  of 
persons  of  foreign  birth  who  had  adopted,  and  been  adopted  by, 
some  one  of  the  states,  who  stood  on  a footing  of  equality  with 
the  native  inhabitants,  and  some  of  whom  had  served  the  country 
of  their  adoption  with  great  distinction  and  unsuspected  fidelity, 
was  the  insuperable  obstacle  to  such  a provision.  The  objection 
arising  from  the  impolicy  of  discouraging  future  immigration  had 
its  weight ; but  it  had  not  the  decisive  influence  which  was  con- 
ceded to  the  position  of  those  foreigners  already  in  the  country  and 
already  enjoying  the  rights  of  citizenship  under  the  laws  and  con- 
; stitutions  of  the  several  states.  That  men  should  be  perpetually 
' ineligible  to  office  under  a constitution  which  they  had  assisted  in 
making  could  not  be  said  to  be  demanded  by  the  people  of  America. 

The  subject,  therefore,  was  found  of  necessity  to  resolve  itself 
into  the  question,  what  period  of  previous  citizenship  should  be 


New  Hampshire,  Massachusetts,  and  Georgia  alone  voted  to  retain  it  El- 
liot, V.  404. 


CONSTITUTIONAL  HISTORY. 


446 

required  ? The  committee  of  detail  proposed  three  years.  Other 
members  desired  a much  longer  period.  Hamilton,  on  the  other 
hand,  supported  by  Madison,  proposed  that  no  definite  time  should 
be  established  by  the  Constitution,  and  that  nothing  more  should 
be  required  than  citizenship  and  inhabitancy.  He  thought  that 
the  discretionary  power  of  determining  the  rule  of  naturalization 
would  afford  the  necessary  means  of  control  over  the  whole  sub- 
ject. But  this  plan  did  not  meet  the  assent  of  a majority  of  the 
states,  and,  after  various  periods  had  been  successively  rejected, 
the  term  of  seven  years’  citizenship  as  a qualification  of  members 
of  the  House  of  Kepresentatives  was  finally  established. 

But  was  this  qualification  to  apply  to  those  foreigners  who 
were  then  citizens  of  the  states,  and  who,  as  such,  would  have  the 
right  to  vote  on  the  acceptance  of  the  Constitution  ? Were  they 
to^be  told  that,  although  they  could  ratify  the  Constitution,  they 
could  not  be  eligible  to  office  under  it  until  they  had  enjoyed  the 
privileges  of  citizenship  for  seven  years?  They  had  been  invited 
hither  by  the  liberal  provisions  of  the  state  institutions  ; they  had 
been  made  citizens  by  the  laws  of  the  state  where  they  resided ; 
the  Articles  of  Confederation  gave  them  the  privileges  of  citizens 
in  everv  other  state ; and  thus  the  very  communities  by  which  this 
Convention  had  been  instituted  were  said  to  have  pledged  their 
public  faith  to  these  persons  that  they  should  stand  upon  an 
equality  with  all  other  citizens.  It  is  a proof  that  their  case  was 
thought  to  be  a strong  one,  and  it  is  a striking  evidence  of  the 
importance  attached  to  the  principles  involved,  that  an  effort  was 
made  to  exempt  them  from  the  operation  of  the  rule  requiring  a 
citizenship  of  seven  years,  and  that  it  was  unsuccessful.' 

It  is  impossible  now  to  determine  how  numerous  this  body  of 
persons  were  in  whose  favor  the  attempt  was  made  to  establish 
an  exception  to  the  rule  ; and  their  numbers  constitute  a fact  that 
is  now  historically  important  only  in  its  bearing  upon  a principle 
of  the  Constitution.  From  the  arguments  of  those  who  sought 
to  introduce  the  exception,  it  appears  that  fears  were  entertained 
that  the  retrospective  operation  of  the  rule  would  expose  the  ac- 


' The  Constitution  of  Pennsylvania  had  given  to  foreigners,  after  two  years 
residence,  all  the  rights  of  citizens.  There  were  similar  provisions  in  nearly  all 
of  the  states. 


447 


QUALIPrCATION  FOR  CITIZENSHIP. 

ceptanco  of  the  Constitution  to  great  hazards ; for  tlie  states  it 
was  said,  woiilil  be  reduced  to  the  dilemma  of  rejectino'  it  or  of 
violating  the  faith  pledged  to  a part  of  their  citizens.  According- 
ly the  implied  obligation  of  the  states  to  secure  to  their  citizens 
of  foreign  birth  the  same  privileges  with  natives  was  urged  with 
great  force,  and  it  was  inferi'ed  from  the  notorious  inducements 
that  had  been  held  out  to  foreigners  to  emigrate  to  America,  and 
to  avail  themselves  of  the  easy  privileges  of  citizenship.  Whether 
the  United  States  were  in  any  way  bound  to  redeem  these  allecred 
pledges  of  the  states  was  a nice  question  of  casuistry  that  was  a 
good  deal  debated  in  the  discussion.  But  in  truth  there  was  no 
obligation  of  public  faith  in  the  case,  the  disregard  of  which  could 
be  justly  made  a matter  of  complaint  by  anybody.  When  the 
states  had  made  these  persons  citizens,  and  through  the  Articles 
of  Confederation  had  conferred  upon  them  the  privileges  of  citi- 
zens m every  state  in  the  Union,  they  did  not  thereby  declare 
that  such  adopted  citizens  should  be  immediately  eligible  to  any 
or  all  of  the  offices  under  any  new  government  which  the  Ameri- 
can people  might  see  fit  to  establish  at  any  future  time.  To  have 
said  that  they  never  should  be  eligible  would  have  been  to  estab- 
lish a rule  that  would  have  excluded  some  of  the  most  eminent 
statesmen  in  the  country.  But  the  period  in  their  citizenship 
when  they  should  be  made  eligible  was  just  as  much  an  open 
question  of  public  policy  as  the  period  of  life  at  which  aU  native 
and  all  adopted  citizens  should  be  deemed  fit  to  exercise  the  func- 
tions of  legislators.  If  the  citizen  of  foreign  birth  was  disfran- 
chised by  the  one  requirement,  the  native  citizen  was  equally  dis- 
franchised by  the  other,  until  the  disability  had  ceased  The 
question  was  decided,  therefore,  and  rightly  so,  upon  large  con- 
SK  erations  of  public  policy ; and  the  principal  reasons  that  exer- 
cised a controlling  influence  upon  the  decision,  and  caused  the 
refusal  to  establish  any  exception  to  the  rule,  afford  an  interesting 
proof  of  the  national  tone  and  spirit  that  were  intended  to  be  im- 
pressed upon  the  government  at  the  beginning  of  its  history. 

It  was  quite  possible,  as  all  were  ready  to  concede,  that  the  time 
niig  t arrive  when  the  qualification  of  so  extended  a period  of 
citizenship  as  seven  years  might  not  be  practically  very  impor- 
tant ; since  the  people,  after  having  been  long  accustomed  to  the 
auty  of  selecting  their  representatives,  would  not  often  be  induced 


CONSTITUTIONAL  HISTORY. 


448 

to  confer  their  suffrages  upon  a foreigner  recently  admitted  to  the 
position  of  a citizen.  The  mischiefs,  too,  that  might  be  appre- 
hended from  such  appointments  would  be  far  less,  after  the  policy 
of  the  government  had  been  settled  and  the  fundamental  legisla- 
tion necessary  to  put  the  Constitution  into  activity  had  been  ac- 
complished. But  the  first  Congress  that  might  be  assembled 
under  the  Constitution  would  have  a work  of  great  magnitude 
and  importance  to  perform.  Indeed,  the  character  which  the 
government  was  to  assume  would  depend  upon  the  legislation  of 
the  few  first  years  of  its  existence.  Its  commercial  regulations 
would  then  be  mainly  determined.  The  relations  of  the  country 
with  foreign  nations,  its  position  towards  Europe,  its  rights  and 
duties  of  neutrality,  its  power  to  maintain  a policy  of  its  own, 
would  all  then  be  ascertained  and  settled.  Nothing,  therefore, 
could  be  more  important  than  to  prevent  persons  having  foreign 
attachments  frpm  insinuating  themselves  into  the  public  councils ; 
and  with  this  great  leading  object  in  view  the  Convention  re- 
fused, though  by  a mere  majority  only  of  the  states,  to  exempt 
from  the  rule  those  foreigners  who  had  been  made  citizens  under 
the  naturalization  laws  of  the  states.* 

Thus  it  appears  that  the  Constitution  of  the  United  States  dis- 
closes certain  distinct  purposes  with  reference  to  the  participation 
of  foreigners  in  the  political  concerns  of  the  country.  In  the  first 
place,  it  was  clearly  intended  that  there  should  be  no  real  discour- 
agement to  immigration.  The  position  and  history  of  the  coun- 
try from  its  first  settlement,  its  present  and  prospective  need  of 
labor  and  capital,  its  territorial  extent,  and  the  nature  of  its  free 
institutions,  were  all  inconsistent  with  any  policy  that  would  pre- 
vent the  redundant  population  of  Europe  from  finding  in  it  an 
asylum.  Accordingly  the  emigrant  from  foreign  lands  was  placed 
under  no  perpetual  disqualifications.  The  power  of  naturalization 
that  was  conferred  upon  the  general  government,  and  the  accom- 


1 Tlie  members  who  advocated  the  exemption  were  G.  Morris,  Mercer,  Gor- 
ham, Madison,  and  Wilson;  those  wlio  opposed  it  were  Rutledge,  Sherman, 
General  Pinckney,  Mason,  and  Baldwin.  The  states  voting  for  it  were  Con- 
necticut, New  Jersey,  Pennsylvania,  Maryland,  Virginia,  5;  the  states  voting 
ao-ainst  \t  were  New  Hampshire,  Massachusetts,  Delaware,  North  Carolina, 
South  Carolina,  Georgia,  6.  The  question  elicited  a good  deal  of  feeling,  and 
was  debated  with  some  warmth. 


PRECAUTIONS  AGAINST  FOREIGN  INFLUENCE.  4.4.1) 

]):uiying  circumstances  attending  its  transfer  by  the  states,  show 
an  intention  tliat  sonic  provision  should  bo  made  for  the  admission 
of  emigrants  to  the  privileges  of  citizensliip,  and  that  in  this  re- 
spect tile  inducements  to  a particular  residence  should  be  precisely 
equal  throughout  the  whole  of  the  states.  The  power  was  not  to 
remain  dormant,  under  ordinary  circumstances,  although  there 
might  undoubtedly  be  occasions  when  its  exercise  should  be  sus- 
pended. The  intention  was  that  the  legislature  of  the  United 
States  should  always  exercise  its  discretion  on  the  subject;  but 
the  existence  of  the  power,  and  the  reasons  for  which  it  was 'con- 
ferred, made  it  the  duty  of  the  legislature  to  exercise  that  discre- 
tion according  to  the  wants  of  the  country  and  the  requirements 
of  public  policy. 

In  the  second  place,  it  is  equally  clear  that  the  founders  of  the 
government  intended  that  there  should  be  a real,  as  well  as  for- 
mal, renunciation  of  allegiance  to  the  former  sovereign  of  the 
emigrant— a real  adoption,  in  principle  and  feeling,  of  the  new 
country  to  which  he  had  transferred  himself— an  actual  amalga- 
mation of  his  interests  and  affections  with  the  interests  and  affec- 
tions of  the  native  population— before  he  should  have  the  power 
of  acting  on  public  affairs.  This  is  manifest  from  the  discretion- 
ary authority  given  to  Congress  to  vary  the  rule  of  naturalization 
from  time  to  time  as  circumstances  might  require— an  authority 
that  places  the  states  under  the  necessity  of  restricting  their  right 
of  suffrage  to  citizens,  if  they  would  avoid  the  evils  to  themselves 
of  an  indiscriminate  exercise  of  that  right  by  all  who  might  choose 
to  claim  it.  The  period  of  citizenship,  too,  that  was  required  as  a 
qualification  for  a seat  in  the  popular  branch  of  the  government, 
and  which  was  extended  to  nine  years  for  the  office  of  senator’ 
was  placed  out  of  the  discretionary  power  of  change  by  the  legis- 
lature, in  order  that  an  additional  term,  beyond  that  required  for 
the  general  rights  of  citizenship,  might  forever  operate  to  exclude 
the  dangers  of  foreign  predilections  and  an  insufficient  knowledge 
of  the  duties  of  the  station. 

No  one  who  candidly  studies  the  institutions  of  America,  and 
considers  what  it  was  necessary  for  the  founders  of  our  govern- 
ment to  foresee  and  provide  for,  can  hesitate  to  recognize  the  wis- 
dom and  the  necessity  of  these  provisions.  A country  of  vast 
extent  opened  to  a boundless  immigration  which  nature  invited 

I.— 29 


CONSTITUTIONAL  HISTORY. 


450 

and  which  man  could  scarcely  repel  — a country,  too,  which  must 
he  governed  hy  popular  suffrage  — could  not  permit  its  legislative 
halls  to  be  invaded  by  foreign  influence.  The  independence  of 
the  country  would  have  been  a vain  and  useless  achievement  if  it 
had  not  been  followed  by  the  practical  establishment  of  the  right 
of  self-government  by  the  native  population ; and  that  right  could 
be  secured  for  their  posterity  only  by  requiring  that  foreigners, 
who  claimed  to  be  regarded  as  a part  of  the  people  of  the  country, 
should  be  first  amalgamated  in  spirit  and  interest  with  the  mass 
of  the  nation. 

No  other  changes  were  made  in  the  proposed  qualifications  for 
the  representatives,  excepting  to  require  that  the  person  elected 
should  be  an  inhabitant  of  the  state  for  which  he  might  be  chosen 
at  the  time  of  election,  instead  of  being  a resident.  This  change 
of  phraseology  was  adopted  to  avoid  ambiguity,  the  object  of  the 
provision  being  simply  to  make  the  representation  of  the  state  a 
real  one. 

The  Convention,  as  we  have  seen,  had  settled  the  rule  for  com- 
puting  the  number  of  inhabitants  of  a state  for  the  purposes  of 
representation,  and  had  made  it  the  same  with  that  for  appor- 
tioning direct  taxes  among  the  states.'  The  committee  of  detail 
provided  that  there  should  be  one  representative  for  every  forty 
thousand  inhabitants,  when  Congress  should  find  it  necessary  to 
make  a new  apportionment  of  representatives ; a ratio  tliat  had 
not  been  previously  sanctioned  by  a direct  vote  of  the  Conven- 
tion, but  which  had  been  recommended  by  the  committee  of  com- 
promise at  the  time  when  the  nature  of  the  representation  in  both 
houses  was  adjusted."  This  ratio  was  now  adopted  in  the  article 
relating  to  the  House  of  Eepresentatives,  but  not  before  an  effort 
was  made  to  exclude  the  slaves  from  the  enumeration."  The  re- 
newed discussion  of  this  exciting  topic  probably  withdrew  the  at- 
tention of  members  from  the  consideration  of  the  numbers  of  the 
representatives,  and  nothing  more  was  done,  at  the  time  we  are 
now  examining,  than  to  make  a provision  tluit  tlie  number  should 
not  exceed  one  for  every  forty  thousand  inhabitants.  But  at  a 
subsequent  stage  of  the  proceedings,'  before  the  Constitution  was 


' Ante,  Chap.  XXIII. 

s See  post,  as  to  the  compromise  on  this  subject. 


2 See  ante,  Chap.  XXIV. 
* September  8th. 


ORIGIN  OF  “MONEY  BILLS. 


451 


sent  to  the  committee  of  revision,  Wilson,  Madison,  and  Hamil- 
ton endeavored  to  ])rocure  a reconsideration  of  this  clause  for  the 
purpose  of  establishing  a more  numerous  representation  of  the 
people.  Hamilton,  who  had  always  and  earnestly  advocated  the 
introduction  of  a strong  democratic  element  into  the  Constitution, 
although  he  desired  an  equally  strong  check  to  that  element  in 
the  construction  of  the  Senate,  is  represented  to  have  expressed 
himself  with  great  emphasis  and  anxiety  respecting  the  represen- 
tation in  the  popular  branch.  He  avowed  himself,  says  Mr.  Mad- 
ison, a friend  to  vigorous  government,  but  at  the  same  time  he 
held  it  to  be  essential  that  the  popular  branch  of  it  should  rest  on 
a broad  foundation.  He  was  seriously  of  opinion  that  the  House 
of  Kepresentatives  was  on  so  narrow  a scale  as  to  be  really  dan- 
gerous, and  to  warrant  a jealousy  in  the  people  for  their  liberties.' 

But  the  motion  to  reconsider  was  lost,"  and  it  was  not  until 
the  Constitution  had  been  engrossed  and  was  about  to  be  signed 
that  an  alteration  was  agreed  to,  at  the  suggestion  of  Washing- 
ton. This  was  the  only  occasion  on  which  he  appears  to  have 
expressed  an  opinion  upon  any  question  depending  in  the  Conven- 
tion. With  the  habitual  delicacy  and  reserve  of  his  character,  he 
had  confined  himself  strictly  to  the  duties  of  a presiding  officer 
throughout  the  proceedings.  But  now,  as  the  Constitution  was 
likely  to  go  forth  with  a feature  that  would  expose  it  to  a serious 
objection,  he  felt  it  to  be  his  duty  to  interpose.  But  it  was  done 
with  great  gentleness.  As  he  was  about  to  put  the  question  he 
said  that  he  could  not  forbear  expressing  his  wish  that  the  pro- 
posed alteration  might  take  place.  The  smallness  of  the  propor- 
tion of  representatives  had  been  considered  by  many  members, 
and  was  regarded  by  him,  as  an  insufficient  security  for  the  rights 
and  interests  of  the  people.  Late  as  the  moment  was,  it  would 
give  him  much  satisfaction  to  see  an  amendment  of  this  part  of 
the  plan  adopted.  The  intimation  was  enough  ; no  further  oppo- 
sition was  offered,  and  the  ratio  was  changed  to  one  representative 
for  thirty  thousand  inhabitants." 

It  is  now  necessary  to  trace  the  origin  of  a peculiar  power  of 

' Elliot,  V.  530.  2 gy  majority  of  one  state.  Ibid. 

^ ®That  is  to  say,  Congress  were  authorized  to  ajDportion  one  representative  to 
thirty  thousand  inhabitants,  but  not  to  exceed  that  number.  Constitution  Art 
I-  § 3.  ’ ' 


CONSTITUTIONAL  lilSTOKY. 


452 

the  House  of  Kepresentatives  that  is  intimately  connected  with 
the  practical  compromises  on  which  the  government  was  founded, 
although  the  circumstances  and  reasons  of  its  introduction  into 
the  Constitution  are  not  generally  understood.  I refer  to  the  ex- 
clusive power  of  originating  what  are  sometimes  called  ‘‘  money 
bills.”  In  making  this  provision  the  framers  of  our  government 
are  commonly  supposed  to  have  been  guided  wholly  by  the  exam- 
ine of  the  British  Constitution,  upon  an  assumed  analogy  between 
the  relations  of  the  respective  houses  in  the  two  countries  to  the 
people  and  to  each  other.  This  view  of  the  subject  is  not  wholly 
correct. 

At  an  early  period  in  the  deliberations,  when  the  outline  of 
the  Constitution  was  prepared  in  a committee  of  the  whole,  a 
proposition  was  brought  forward  to  restrain  the  Senate  from  orig- 
inating money  bills,  upon  the  ground  that  the  House  would  be  the 
body  in  which  the  people  would  be  the  most  directly  represented, 
and  in  order  to  give  effect  to  the  maxim  which  declares  that  the 
people  should  hold  the  purse-strings.  The  suggestion  was  imme- 
diately encountered  by  a general  denial  of  all  analogy  between 
the  English  House  of  Lords  and  the  body  proposed  to  be  estab- 
lished as  the  American  Senate.  In  truth,  as  the  construction  of 
the  Senate  then  stood  in  the  resolutions  agreed  to  in  the  commit- 
tee of  the  whole,  the  supposed  reason  for  the  restriction  in  Eng- 
land would  have  been  inapplicable ; for  it  had  been  voted  that 
the  representation  in  the  Senate  should  be  upon  the  same  propor- 
tionate rule  as  that  of  the  House,  although  the  members  of  the 
former  were  to  be  chosen  by  the  legislatures,  and  the  members  of 
the  latter  by  the  people,  of  the  states.  It  was  rightly  said,  there- 
fore, at  this  time,  that  the  Senate  would  represent  the  people  as 
well  as  the  House;  and  that  if  the  reason  in  England  for  confin- 
ing the  power  to  originate  money  bills  to  the  House  of  Commons 
was  that  they  were  the  immediate  representatives  of  the  people, 
the  reason  had  no  application  to  the  two  branches  proposed  for 
the  Congress  of  the  United  States.*  It  was,  however,  admitted 

1 Let  the  reader  consult  Mr.  Ilallants  acute  and  learned  discussion  of  this  ex- 
clusive privilege  of  the  House  of  Commons  (Const.  Hist.,  III.  37-4G)  and  he  will 
probably  be  satisfied  that,  whatever  tlicoretical  reasons  different  writers  may 
have  assigned  for  it,  its  origin  is  so  obscure,  and  its  precise  limits  and  purposes 
deduced  from  the  precedents,  are  so  uncertain,  that  it  can  now  be  said  to  rest 


ORIGIN  OF  “MONEY  RILLS.” 


45a 


that,  if  the  representation  in  the  Senate  should  not  finally  be  made 
a proportionate  representation  of  the  people  of  the  several  states, 
there  might  be  a eanse  for  introducing  this  restriction.'  This 
intimation  referred  to  a reason  that  subsequently  became  very 
])rominent.  But  when  first  proposed  the  restriction  was  rejected 
in  the  committee  by  a vote  of  seven  states  against  three,  there 
being  nothing  involved  in  the  question  at  that  time  excepting  the 
theoretical  merits  of  such  a distinction  between  the  powers  of  the 
two  houses.'" 

But  other  considerations  afterwards  arose.  When  the  final 
struggle  came  on  between  the  larger  and  the  smaller  states  upon 
the  cliaracter  of  the  representation  in  the  two  branches,  the  plan 
of  restricting  the  origin  of  money  bills  to  the  House  of  Kepresen- 
tatives  presented  itself  in  a new  aspect.  The  larger  states  were 
required  to  concede  an  equality  of  representation  in  the  Senate ; 
and  it  was  supposed,  therefore,  that  they  would  desire  to  increase 
the  relative  power  of  the  branch  in  which  they  would  have  the 
greatest  numerical  strength.  The  five  states  of  Massachusetts, 
Pennsylvania,  Virginia,  North  Carolina,  and  South  Carolina  had 
steadily  resisted  the  equality  of  votes  in  the  Senate.  When  it 
was  at  length  found  that  the  states  were  equally  divided  on  this 
question,  and  it  became  necessary  to  appoint  the  first  committee 
of  compromise,  the  smaller  states  tendered  to  the  five  larger  ones 
the  exclusive  money  power  of  the  House  as  a compensation  for 
the  sacrifice  required  of  them.  It  was  so  reported  by  the  com- 
mittee of  compromise;  and  although  it  met  with  resistance  in 
the  Convention,  and  was  denied  to  be  a concession  of  any  impor- 

on  no  positive  principles.  Its  basis  is  custom,  which,  having  no  definite  begin- 
ning, is  now  necessarily  immemorial.  It  would  not  be  quite  safe,  therefore,  to 
reason  upon  the  well-defined  provision  of  our  Constitution  as  if  there  were  a 
close  analogy  between  the  situation  of  the  two  houses  of  Congress  and  the  two 
branches  of  the  British  legislature.  The  English  example  certainly  had  an  in- 
fluence in  suggesting  the  plan  of  such  a restriction;  but  care  must  be  taken  not 
to  overlook  the  peculiar  arrangements  which  made  it  so  highly  expedient  that 
it  may  be  said  to  have  been  a necessity,  even  if  there  had  been  no  British 
example. 

^ C.  Pinckney.  Elliot,  V.  189.  June  13th. 

^ On  the  question  for  restraining  the  Senate  from  originating  money  bills, 
New  York,  Delaware,  Virginia,  ay^  3 ; Massachusetts,  Connecticut,  New  Jersey, 
IMaryland,  North  Carolina,  South  Carolina,  Georgia,  no,  7.  Ibid. 


454: 


CONSTITUTIONAL  HISTORT. 


tance  to  the  larger  states,  it  was  retained  in  the  report,  and  thus 
formed  a special  feature  of  the  resolutions  sent  to  the  committee 
of  detail.  But  those  resolutions  had  also  established  the  equality 
of  representation  in  the  Senate,  and  the  whole  compromise,  with 
its  several  features,  had,  therefore,  been  once  fully  ascertained 
and  settled.  A strong  opposition,  nevertheless,  continued  to  be 
made  to  the  exclusive  money  power  of  the  House  by  those  who 
disapproved  of  it  on  its  merits ; and  when  the  article  by  which  it 
was  given  in  the  reported  draft  prepared  by  the  committee  of  de- 
tail was  reached,  it  was  stricken  out  by  a very  large  vote  of  the 
states."  In  this  vote  there  was  a concurrence  of  very  opposite 
purposes  on  the  part  of  the  different  states  composing  the  major- 
ity. Hew  Jersey,  Delaware,  and  Maryland,  for  example,  feeling 
secure  of  their  equality  in  the  Senate,  were  not  unwilling  to  allow 
theoretical  objections  to  prevail  against  the  restriction  of  money 
bills  to  the  branch  in  which  they  would  necessarily  be  outnum- 
bered. On  the  other  hand,  some  of  the  delegates  of  Pennsylvania, 
Virginia,  and  South  Carolina,  still  unwilling  to  acquiesce  in  the 
equality  of  representation  in  the  Senate,  may  have  hoped  to  un- 
hinge the  whole  compromise.  There  was  still  a third  party  among 
the  members,  who  insisted  on  maintaining  the  compromise  in  all 
its  integrity,  and  who  considered  that  the  nature  of  the  represen- 
tation in  the  Senate,  conceded  to  the  wishes  of  the  smaller  states, 
rendered  it  eminently  lit  that  the  House  alone  should  have  the 
exclusive  power  to  originate  money  bills." 

This  party  finally  prevailed.  They  rested  their  first  efforts 
chiefly  upon  the  fact  that  the  Senate  was  to  represent  the  states 
in  their  political  character.  Although  it  might  be  proper  to  give 
such  a body  a negative  upon  the  appropriations  to  be  made  by  the 


1 Elliot,  V.  285.  Ante,  Chap.  XXIV. 

2 August  8th.  For  striking  out.  New  Jersey,  Pennsylvania,  Delaware,  Mary- 
land, Virginia,  South  Carolina,  Georgia,  ay,  7 ; New  Hampshire,  Massachusetts, 
Connecticut,  North  Carolina,  no,  4. 

s Dr.  Franklin,  Mason,  Williamson,  and  Randolph.  (Elliot,  V.  395-397.)  It 
would  be  endless  to  cite  the  observations  of  different  members  to  show  the  pur- 
poses which  they  entertained.  The  reader  who  desires  to  test  the  accuracy  of 
my  inferences  in  any  of  these  descriptions  must  study  the  debates,  and  com- 
pare, as  I have  done,  the  different  phases  which  the  subject  assumed  from  time 
to  time. 


MODE  OF  CHOOSING  THE  EXECUTIVE.  455 

representatives  of  the  people,  it  was  not  proper  that  it  should  tax 
the  people.  They  first  procured  a reconsideration  of  the  vote 
which  had  sti’icken  out  this  ])art  of  the  compromise.  They  then 
})roposed,  in  order  to  avoid  an  alleged  ambiguity,  that  lulls  for 
raising  money  for  the  purpose  of  revenue^  or  appro})riating  money, 
should  originate  in  the  House,  and  should  not  be  so  amended  or 
altered  in  the  Senate  as  to  increase  or  diminish  the  sum  to  be 
raised,  or  change  the  mode  of  levying  it,,  or  the  object  of  its  ap- 
propriation.' An  earnest  and  somewhat  excited  debate  followed 
this  proposition,  but  it  was  lost."* 

In  a day  or  two,  however,  another  effort  was  made,  conceding 
to  the  Senate  the  power  to  amend,  as  in  other  cases,  but  confining 
the  right  to  the  House  of  originating  bills  for  raising  money  for 
the  purpose  of  revenue,  or  for  appropriating  the  same,  and  for 
fixing  the  salaries  of  officers  of  the  government.'' 

This  new  proposition  was  postponed  for  a long  time,  until  it 
became  necessary  to  refer  several  topics  not  finally  acted  upon  to 
a committee  of  one  member  from  each  state. ^ Among  these  sub- 
jects there  was  one  that  gave  rise  to  protracted  conflicts  of  opinion, 
which  will  be  examined  hereafter.  It  related  to  the  mode  of 
choosing  the  executive.  In  the  plan  reported  by  the  committee  of 
detail,  pursuant  to  the  instructions  of  the  Convention,  the  executive 
was  to  be  chosen  by  the  national  legislature,  for  a period  of  seven 
years,  and  was  to  be  ineligible  a second  time.  Great  efforts  were 
subsequently  made  to  change  both  the  mode  of  appointment  and 
the  tenure  of  the  office,  and  the  whole  subject  was  finally  referred 
with  others  to  a committee.  In  this  committee  a new  compro- 
mise, which  has  attracted  but  little  attention,  embraced  the  long- 
contested  point  concerning  the  origin  of  mone}^  bills.  In  this 
compromise,  as  in  so  many  of  the  others  on  which  the  Constitution 
was  founded,  two  influences  are  to  be  traced.  There  were  in  the 
first  place  what  may  be  called  the  merits  of  a proposition,  without 
regard  to  its  bearing  on  the  interests  of  particular  states ; and  in 
the  second  place  there  were  the  local  or  state  interests,  which 

’ Moved  by  Randolph,  August  13tli.  Elliot,  V.  414.  2 ibid.,  420. 

® Moved  by  Mr.  Strong,  August  15th.  Ibid.,  427.  This  was  brought  forward 
as  an  amendment  to  the  article  (Art.  VI.  § 12)  which  was  to  define  the  powers  of 
the  two  houses. 

^August  31st.  Elliot,  V.  503. 


456 


CONSTITUTIONAL  IlISTORY. 


entered  into  the  treatment  of  every  question  by  which  they  could 
be  affected.  In  studying  the  compromises  of  the'  Constitution,  it 
is  constant!}^  necessary  to  observe  liow  the  arrangement  ffnally 
made  was  arrived  at  by  the  concurrence  of  votes  given  from 
these  various  motives. 

It  was  now  proposed  in  the  new  committee  that  the  executive 
should  be  chosen  by  electors,  appointed  by  each  state  in  such 
manner  as  its  legislature  might  direct,  each  state  to  have  a number 
of  electors  equal  to  the  whole  number  of  its  senators  and  repre- 
sentatives in  Congress ; that  the  person  having  the  greatest  num- 
ber of  votes,  provided  it  were  a majority  of  the  electors,  should  be 
declared  elected ; that  if  there  should  be  more  than  one  having 
such  a majority,  the  Senate  should  immediately  choose  one  of 
them  by  ballot ; and  that  if  no  person  had  a 'majority,  the  Senate 
should  immediately  choose  by  ballot  from  the  five  highest  candi- 
dates on  the  list  returned  by  the  electors.  This  plan  of  vesting 
the  election  in  the  Senate,  in  case  there  should  be  no  choice  by 
the  electors,  was  eagerl}^  embraced  by  the  smaller  states,  because 
it  was  calculated  to  restore  to  them  the  equilibrium  which  they 
would  lose  in  the  primary  election,  by  the  preponderance  of  votes 
held  by  the  larger  states.  At  the  same  time  it  gave  to  the  larger 
states  great  influence  in  bringing  forward  the  candidates  from 
whom  the  ultimate  choice  must  be  made,  when  no  choice  had 
been  effected  by  the  electors ; and  it  put  it  in  their  power,  by  a 
combination  of  their  interests  against  those  of  the  smaller  states, 
to  choose  their  candidate  at  the  first  election.  To  this  great  in- 
fluence many  members  from  the  larger  states  desired,  naturally, 
to  add  the  privilege  of  confining  the  origin  of  revenue  bills  to  the 
House  of  Eepresentatives.  They  found  in  the  committee  some 
members  from  the  smaller  states  willing  to  concede  this  privilege, 
as  the  price  of  an  ultimate  election  of  the  executive  by  the  Senate, 
and  of  other  arrangements  which  tended  to  elevate  the  tone  of 
the  government  by  increasing  the  power  and  influence  of  the 
Senate.  They  found  others  also  who  approved  of  it  upon  princi- 
ple. The  compromise  was  accordingly  effected  in  the  committee, 
and  in  this  attitude  the  question  concerning  revenue  bills  again 
came  before  the  Convention.' 


1 Elliot,  V.  50G,  510.  511,  514.  The  privilege,  as  it  came  from  this  committee, 


QUALIFICATIONS  OF  SENATORS.  457 

But  there,  a sclienie  tliat  seemed  likely  to  elevate  the  Senate 
into  a ])o\verfiil  oligarchy,  and  that  would  certainly  put  it  in  the 
power  of  seven  states,  not  containing  a third  of  the  people,  to  elect 
the  executive,  when  there  failed  to  be  a choice  by  the  electors, 
met  with  strenuous  resistance.  For  these  and  other  reasons,  not 
necessary  to  be  recounted  here,  the  ultimate  choice  of  the  execu- 
tive was  transferred  from  the  Senate  to  the  House  of  Representa- 
tives.* This  change,  if  coupled  with  the  concession  of  revenue 
bills  to  the  House,  without  the  right  to  amend  in  the  Senate, 
would  have  thrown  a large  balance  of  poAver  into  the  former  as- 
sembly ; and  in  order  to  prevent  this  inequality,  a provision  Avas 
made,  in  the  Avords  used  in  the  Constitution  of  Massachusetts,  that 
the  Senate  might  propose  or  concur  Avith  amendments,  as  on  other 
bills.  With  this  addition,  the  restriction  of  the  origin  of  bills  for 
raising  revenue  to  the  House  of  Representatives  finally  passed, 
Avith  but  two  dissentient  votes.^ 

The  qualifications  of  the  senators  had  been  made  superior  in 
some  respects  to  those  of  the  members  of  the  House  of  Represen- 
tatiA^es,  on  account  of  the  peculiar  duties  Avhich  it  Avas  intended 
they  should  discharge,  and  the  length  of  their  term  of  office. 
They  Avere  to  be  of  the  age  of  thirty  years ; to  be  inhabitants  of 
the  states  for  AAdiich  they  might  be  chosen  ; and  in  the  report  of 
the  committee  of  detail  the  period  of  four  years’  citizenship  AA’^as 
made  one  of  the  requirements.  But  so  great  Avas  the  jealousy  of 
foreign  influence,  and  so  important  Avas  the  position  of  a senator 
likely  to  become,  that,  Avhen  this  particular  qualification  came  to 
be  considered,  it  Avas  found  to  be  altogether  impossible  to  make 
so  short  a period  of  citizenship  acceptable  to  a majority.  Accord- 
ing to  the  plan  then  contemplated,  the  Senate  Avas  to  be  a body 
of  great  poAver.  Its  legislative  duties  Avere  to  form  but  a part  of 
its  functions.  It  was  to  hav^e  the  making  of  treaties,  and  the  ap- 
pointment of  ambassadors  and  judges  of  the  Supreme  Court,  with- 
out the  concurrent  action  of  any  other  department  of  the  govern- 


was  confined  to  “ bills  for  raising  revenue and  these  were  made  subject  to 
“ alterations  and  amendments  by  the  Senate.” 

* Ibid.,  519. 

The  history  of  this  provision  shows  clearly  that  a bill  for  appropriating 
money  may  originate  in  the  Senate. 


CONSTITUTIONAL  HISTOKY. 


458 


ment.  In  addition  to  these  special  powers  it  was  to  have  a con- 
current vote  with  the  House  of  Eepresentatives  in  the  election  of 
the  executive.  It  was  also  to  exercise  the  judicial  function  of 
hearing  and  determining  questions  of  boundary  between  the  states. 

This  formidable  array  of  powers,  which  were  subsequently 
much  modified  or  entirely  taken  away,  but  which  no  one  could 
then  be  sure  would  not  be  retained  as  they  had  been  proposed, 
rendered  it  necessary  to  guard  the  Senate  with  peculiar  care.  A 
very  animated  discussion,  in  which  the  same  reasons  were  urged 
on  both  sides  which  had  entered  into  the  debate  on  the  qualifica- 
tions of  the  representatives,  enforced  by  the  peculiar  dangers  to 
which  the  Senate  might  be  exposed,  at  length  resulted  in  a vote 
establishing  the  period  of  nine  years’  citizenship  as  a qualification 
for  the  office  of  a senator.' 

The  origin  of  the  number  of  senators  and  of  the  method  of 
voting  forms  an  interesting  and  important  topic,  to  which  our 
inquiries  should  now  be  directed.  AYe  have  already  seen  that,  in 
the  formation  of  the  Virginia  plan  of  government,  as  it  was  digest- 
ed in  the  committee  of  the  whole,  the  purpose  was  entertained,  and 
was  once  sanctioned  by  a bare  majority  of  the  states,  of  giving  to 
both  branches  of  the  legislature  a proportional  representation  of 
the  respective  populations  of  the  states;  and  that  the  sole  diffei- 
ence  between  the  two  chambers  then  contemplated  was  to  be  in 
the  mode  of  election.  But  in  the  actual  situation  of  the  different 
members  of  the  Confederacy  it  was  a necessary  consequence  of 
such  a representation  that  the  Senate  would  be  made  by  it  incon- 
veniently large,  whether  the  members  were  to  be  elected  by  the 
leo-islatures,  the  executives,  or  the  people  of  the  states.  It  would, 
in'^fact,  have  made  the  first  Senate  to  consist  of  eiglity  or  a hun- 
dred persons  in  order  to  have  entitled  the  state  of  Delav/are  to  a 
single  member.  This  inconvenience  was  pointed  out  at  an  early 
period  by  Eufus  King  but  it  did  not  prevent  the  adoption  of 
this  mode  of  representation.  On  the  one  side  of  that  long-con- 
tested question  were  those  who  desired  to  found  the  whole  system 
of  representation  as  between  the  states  upon  their  relative  num- 
bers of  inhabitants.  On  the  other  side  were  those  who  insisted 


^ August  9tli. 


• ALi-ubu  uLi.  Elliot  V.  398-401.  Massaclmsctts,  Connecticut,  Pennsylvania, 
and  Maryland  voted  in  the  negative,  and  the  vote  of  North  Carolina  was  divided. 
^ May  31st.  Elliot,  V.  133. 


NUMBER  OF  SENATORS. 


459 


upon  an  absolute  equality  between  the  states.  But  among  the 
former  there  was  a great  difference  of  opinion  as  to  the  best  mode 
of  choosing  the  senators — whether  they  should  bo  elected  by  the 
])eople  in  districts,  by  the  legislatures  or  the  executives  of  the 
states,  or  by  the  other  branch  of  the  national  legislature.  So 
strongly,  however,  were  some  of  the  members,  even  from  the  most 
populous  states,  impressed  with  the  necessity  of  preserving  the 
state  governments  in  some  connection  with  the  national  system, 
that,  Avhile  they  insisted  on  a proportional  representation  in  the 
Senate,  they  were  ready  to  concede  to  the  state  legislatures  the 
choice  of  its  members,  leaving  the  difficulty  arising  from  the  mag- 
nitude of  the  body  to  be  encountered  as  it  might  be.’  The  dele- 
gates of  the  smaller  states  accepted  this  concession,  in  the  belief 
that  the  impracticability  of  constructing  a convenient  Senate  in 
this  mode  would  compel  an  abandonment  of  the  principle  of  une- 
qual representation,  and  would  require  the  substitution  of  the 
equalit}^  for  which  they  contended. 

In  this  expectation  they  were  not  disappointed,  for  when  the 
system  framed  in  the  committee  came  under  revision  in  the  Con- 
vention, and  the  severe  and  protracted  contest  ended  at  last  in  the 
compromise  described  in  a previous  chapter,  the  states  were  not 
only  permitted  to  choose  the  members  of  the  Senate,  but  they 
Avere  admitted  to  an  equality  of  representation  in  that  branch, 
and  the  subject  was  freed  from  the  embarrassment  arising  from 
the  numbers  that  must  have  been  introduced  into  it  b}^  the  oppo- 
site plan.  From  this  point  the  sole  questions  that  required  to  be 
determined  related  to  the  number  of  members  to  be  assigned  to 
each  state,  and  the  method  of  voting.  The  first  AA^as  a question 
of  expediency  only ; the  last  Avas  a question  both  of  expediency 
and  of  principle. 

The  constant  aim  of  the  states  Avhich  had  from  the  first  opposed 
a radical  change  in  the  structure  of  the  government  Avas  to  frame 
the  legislature  as  nearly  as  possible  upon  the  model  of  the  Con- 
gress of  the  Confederation.  In  that  assembly  each  state  Avas 
alloAA^ed  not  more  than  seA^en  and  not  less  than  two  members; 
but  in  practice  the  delegations  of  the  states  perpetually  varied 
between  these  two  numbers  or  fell  beloAv  the  loAA^est,  and  in  the 


^ Dickinson,  Gerry,  Mason. 


400 


CONSTITUTIONAL  IIISTOIIY. 


latter  case  the  state  was  not  considered  as  represented.  The  meth- 
od of  voting,  however,  rendered  it  unimportant  how  many  mem- 
bers were  present  from  a state,  provided  they  were  enough  to  cast 
the  vote  of  the  state  at  all ; for  all  questions  were  decided  by  the 
votes  of  a majority  of  the  states,  and  not  of  a majority  of  the 
members  voting.  I have  already  had  occasion  more  than  once  to 
notice  the  fact— and  it  is  one  of  no  inconsiderable  importance— 
that  the  first  Continental  Congress,  assembled  in  1774,  adopted 
the  plan  of  giving  to  each  colony  one  vote,  because  it  was  impos- 
sible to  ascertain  the  relative  importance  of  the  different  colonies. 
The  record  that  Avas  then  made  of  this  reason  for  a method  of 
voting  that  would  have  been  otherwise  essentially  unjust  shows 
quite  clearly  that  a purpose  was  then  entertained  of  adopting 
some  other  method  at  a future  time.  But  when  the  Articles  of 
Confederation  were  framed,  in  1781,  it  appears  as  clearly  from  the 
discussions  in  Congress,  not  only  that  the  same  difficulty  of  obtain- 
ing the  information  necessary  for  a different  system  continued,  but 
that  some  of  the  states  Avere  absolutely  unwilling  to  enter  the  Con- 
federation upon  any  other  terms  than  a full  federal  equality.  In 
this  Avay  the  practice  of  voting  by  states  in  Congress  Avas  perpet- 
uated down  to  the  year  1787.  It  had  come  to  be  regarded  by 
some  of  the  smaller  states,  notAvithstanding  the  injustice  and 
incon\mnience  Avhich  it  constantly  produced,  as  a kind  of  birth- 
right; and  Avhen  the  Senate  of  the  United  States  came  to  be 
framed,  and  an  equality  of  representation  in  it  Avas  conceded, 
some  of  the  members  of  those  states  still  considered  it  necessary 
to  preserve  this  method  of  Acting  in  order  to  complete  the  idea 
of  state  representation,  and  to  enable  the  states  to  protect  their 
political  rights.'  But  it  is  obvious  that,  for  this  purpose,  the 
question  had  lost  its  real  importance  Avhen  an  equal  number  of 
senators  Avas  assigned  to  each  state ; since,  upon  every  measure 
that  can  touch  the  separate  rights  and  interests  of  a state,  the 
unamimity  Avhich  is  certain  to  prevail  among  its  representatives 
makes  the  A^ote  of  the  state  as  efficient  as  it  could  be  if  it  Avere 


1 Sherman,  Luther  Martin,  Ellsworth.  On  the  naked  proposition,  moved  by 
Ellsworth,  July  2d,  to  allow  each  state  one  vote  in  the  Senate,  Connecticut,  New 
York,  Ne’w  Jersey,  Delaware,  Maryland,  ay,  5 ; :Massachusetts,  Pennsylvania, 
Virginia,  North  Carolina,  South  Carolina,  no,  5 ; Georgia  divided. 


POWERS  OF  THE  SENATE. 


401 

re(jiiiro(l  to  be  cast  as  a unit,  while  the  chances  for  its  protection 
are  increased  by  the  o])portnnity  of  gaining  single  votes  from  the 
delegations  of  other  states. 

These  and  similar  considerations  ultimately  led  a large  majority 
ot  the  states  to  j)refer  a union  of  the  plan  of  an  equal  number  of 
senators  from  each  state  with  that  which  would  allow  them  to 
vote  per  capita'  The  number  of  two  was  adopted  as  the  most 
convenient,  under  all  the  circumstances,  because  most  likely  to 
unite  the  despatch  of  business  with  the  constant  presence  of  an 
equal  number  from  every  state. 

"With  this  peculiar  character  the  outline  of  the  institution  went 
to  the  committee  of  detail.  On  the  consideration  of  their  report 
these  provisions,  as  we  have  seen,  became  complicated  with  the  re- 
sH'iction  of  “money  bills”  to  the  House  of  Kepresentatives  and  the 
choice  of  the  executive.  The  mode  in  which  those  controversies 
were  finally  settled  being  elsewhere  stated,  it  only  remains  here  to 
record  the  fact  that  the  particular  nature  and  form  of  the  represen- 
tation in  the  Senate  was  generally  acquiesced  in,  when  its  relations 
to  the  other  branches  of  the  government  had  been  determined. 

The  difference  of  origin  of  the  two  branches  of  the  legislature 
made  it  necessary  to  provide  for  different  modes  of  supplying  the 
vacancies  that  might  occur  in  them.  The  obvious  way  of  effect- 
ing this  in  the  case  of  a vacancy  in  the  office  of  a representative 
was  to  order  a new  election  by  the  people,  who  can  readily  assem- 
ble for  such  a purpose ; and  the  duty  of  ordering  such  Sections 
was  imposed  on  the  executives  of  the  states,  because  those  func- 
tionaries would  be  best  informed  as  to  the  convenience  of  their 
meeting.  But  the  state  legislatures,  to  whom  the  choice  of  sena- 
tors was  to  be  confided,  would  be  in  session  for  only  a part  of  the 
year ; and  to  summon  them  for  the  special  purpose  of  filling  a 
vacancy  in  the  Senate  might  occasion  great  inconvenience.  The 
committee  of  detail,  therefore,  provided  that  vacancies  in  the  Sen- 
ate might  be  supplied  by  the  executive  of  the  state  until  the  next 
meeting  of  its  legislature. 

It  is  now  time  to  turn  to  the  examination  of  that  great  scheme 
of  separate  and  concurrent  powers  which  it  had  been  proposed  to 
conler  upon  the  Senate,  and  the  suggestion  of  which  influenced  to 


Maryland  alone  voted  against  it. 


4G2 


CONSTITUTIONAL  HISTORY. 


a great  degree  the  qualifications  of  the  members,  their  term  of 
office,  and'indeed  the  entire  construction  of  this  branch  of  the 
legislature.  The  primary  purpose  of  a Senate  was  that  of  a sec- 
ond legislative  chamber,  having  equal  authority  m all  acts  of  leg- 
islation with  the  first,  the  action  of  both  being  necessary  to  the 
passage  of  a law.  As  the  formation  of  the  Constitution  pro- 
ceeded, from  the  single  idea  of  such  a second  chamber,  without 
any  special  character  of  representation  to  distinguish  it  from  the 
first,  up  to  the  plan  of  an  equal  representation  of  the  states,  there 
was’a  strong  disposition  m.anifested  to  accumulate  power  in  the 
body  for  which  this  peculiar  character  had  been  gained.  It  had 
been  made  the  depositary  of  a direct  and  equal  state  influence ; 
and  this  feature  of  the  system  had  become  fixed  and  irrevocable 
before  the  powers  of  the  other  departments,  or  their  origin  or  re- 
lations, liad  been  finally  settled.  The  consequence  was  that,  for  a 
time,  wherever  jealousy  was  felt  with  regard  to  the  executive  or 
the  judiciary — wherever  there  was  a doubt  about  confiding  in  the 
direct  action  of  the  people— wherever  a chasm  presented  itself, 
and  the  right  mode  of  filling  it  did  not  occur— there  was  a ten- 

dencv  to  resort  to  the  Senate.  • . i. 

Thus,  when  the  committee  of  detail  were  charged  with  the 
dutv  of  preparing  the  Constitution  according  to  the  resolutions 
ao*reed  upon  in  the  Convention,  the  Senate  had  not  only  been 
made  a legislative  body,  with  authority  co-ordinate  to  that  of  the 
House,  but  it  had  received  the  separate  power  of  appointing  e 
indt^-es’,  and  the  power  to  give  a separate  vote  in  the  election  of 
the'executive.  The  power  to  make  war  and  treaties,  the  appoint- 
ment of  ambassadors,  and  the  trial  of  impeachments  had  not  been 
distinctly  given  to  any  department ; but  the  general  intention  to 
be  inferred  from  the  resolutions  was,  that  these  matters  should  be 
vested  in  one  or  both  of  the  two  branches  of  the  legislature.  To 
the  executive  the  duty  had  been  assigned,  which  the  name  of  the 
office  implies,  of  executing  the  laws;  to  which  had  been  added  a 
revisionary  check  upon  legislation,  and  the  appointment  to  offices 
in  cases  not  otherwise  provided  for.  The  judicial  power  had  een 
described  in  general  and  comprehensive  terms,  which  requiret  a 
particular  enumeration  of  the  cases  embraced  by  t e princq^  es 
laid  down ; but  it  had  not  been  distinctly  foreseen  that  one  of  the 
cases  to  which  those  principles  must  lead  would  be  an  allegei 


POWERS  OF  THE  SENATE. 


463 


conflict  between  an  act  of  legislation  and  the  fundamental  law  of 
the  Constitution.  The  system  thus  marked  out  was  carried  into 
detail  by  the  committee,  by  vesting  in  the  Senate  the  power  to 
make  treaties,  to  appoint  ambassadors  and  judges  of  the  Supreme 
Court,  and  to  adjudicate  questions  of  boundary  between  the  states ; 
by  givdng  to  tlie  two  branches  of  the  legislature  the  power  to  de- 
clare Avar ; by  assigning  the  trial  of  impeachments  to  the  Supreme 
Court,  and  enumerating  the  other  cases  of  Avhich  it  was  to  have 
cognizance ; and  by  providing  for  the  election  of  the  executive  by 
the  legislature,  and  confining  its  poAvers  and  duties  to  those  pre- 
scribed for  it  by  the  resolutions. 

It  is  scarcely  necessary  to  pause  for  the  purpose  of  comment- 
ing on  the  practical  inconveniences  of  some  of  these  arrangements. 
However  proper  it  may  be,  in  a limited  and  republican  govern- 
ment, to  vest  the  poAver  of  declaring  Avar  in  the  legislative  depart- 
ment, the  negotiation  of  treaties  by  a numerous  body  had  been 
found,  in  our  oAvn  experience  and  in  that  of  other  republics,  ex- 
tremely embarrassing.  However  Avise  may  be  a jealousy  of  the 
executwe  department,  it  is  difficult  to  say  that  the  same  authority 
that  is  intrusted  Avith  the  appointment  to  all  other  offices  should 
not  be  permitted  to  make  an  ambassador  or  a judge.  HoAvever 
august  may  be  a proceeding  that  is  to  determine  a boundary  be- 
tAveen  sovereign  states,  it  is  nothing  more  and  nothing  less  than 
a strictly  judicial  controversy,  capable  of  trial  in  the  ordinary 
forms  and  tribunals  of  judicature,  besides  being  one  that  ought 
to  be  safely  remoA^ed  from  all  political  influences.  HoAvever  nec- 
essary it  may  be  that  an  impeachment  should  be  conducted  Avith 
the  solemnities  and  safeguards  of  allegation  and  proof,  it  is  not 
alAA^ays  to  be  decided  by  the  rules  Avith  Avhich  judges  are  most 
familiar,  or  to  be  determined  b}^  that  body  of  laAv  Avhich  it  is  their 
special  duty  to  administer.  HoAveA^er  desirable  it  may  be  that  an 
elective  chief  magistracy  should  be  filled  Avith  the  highest  capacity 
and  fitness,  and.  that  popular  tumults  should  be  avoided,  no  gOY- 
ernment  has  yet  existed  in  AA^hich  the  election  of  such  a magis- 
trate by  the  legislative  department  has  afforded  any  decided  ad- 
A^antage  over  an  election  directly  or  indirectly  by  the  people;  and 
to  give  a body  constituted  as  the  American  Senate  is  a negative 
in  the  choice  of  the  executiA^'e  Avould  be  certainly  inconvenient, 
probably  dangerous. 


4G4 


CONSTITUTIONAL  HISTORY. 


But  the  position  of  the  Senate  as  an  assembly  of  the  states, 
and  certain  opinions  of  its  superior  fitness  for  the  discharge  of 
some  of  these  duties,  had  united  to  make  it  far  too  powerful  for  a 
safe  and  satisfactory  operation  of  the  government.  It  was  found 
to  be  impossible  to  adjust  the  whole  machine  to  the  quantity  of 
power  that  had  been  given  to  one  of  its  parts.  It  was  eminently 
just  and  necessary  that  the  states  should  have  an  equal  and  direct 
representation  in  some  branch  of  the  government ; but  that  a 
majority  of  the  states,  containing  a minority  of  the  people,  should 
possess  a negative  in  the  appointment  of  the  executive,  and  in  the 
question  of  peace  or  war,  and  the  sole  voice  in  the  appointment  of 
judges  and  ambassadors,  was  neither  necessary  nor  proper.  Theo- 
retically it  might  seem  appropriate  that  a question  of  boundary 
between  any  two  of  the  states  represented  in  it  should  be  com- 
mitted to  the  Senate,  as  a court  of  the  peers  of  the  sovereign  par- 
ties to  the  dispute ; but  practically  this  would  be  a tribunal  not 
well  fitted  to  try  a purely  judicial  question.  It  became  necessary, 
therefore,  to  discover  the  true  limit  of  that  control  which  the 
nature  of  the  representation  in  the  Senate  was  to  be  allowed  to 
give  to  a majority  of  the  states.  There  had  been  some  effort,  in 
the  progress  of  the  controversy  respecting  the  representative  sys- 
tem, to  confine  the  equal  power  of  the  states,  in  matters  of  legis- 
lation, to  particular  questions  or  occasions ; but  it  had  turned  out 
to  be  impracticable  thus  to  divide  or  limit  the  ordinary  legislatiic 
authority  of  the  same  body.  If  the  Senate,  as  an  equal  assembly 
of  the  states,  was  to  legislate  at  all,  it  must  legislate  upon  all  sub- 
jects by  the  same  rule  and  method  of  suffrage.  But  when  the 
question  presented  itself  as  to  the  separate  action  of  this  assem- 
bly—how  far  it  should  be  invested  with  the  appointment  of  other 
functionaries,  how  far  it  should  control  the  relations  of  the  coun- 
try with  foreign  nations,  how  far  it  should  partake  both  of  execu- 
tive and  judicial  powers— it  was  much  less  difficult  to  draw  the 
line,  and  to  establish  proper  limits  to  the  direct  agency  of  the 
states.  Those  limits  could  not  indeed  be  ascertained  by  the  mere 
application  of  theoretical  principles.  They  were  to  be  found  in 
the  primary  necessity  for  reposing  greater  powers  m other  depart- 
ments, for  adjusting  the  relations  of  the  system  by  a wider  distri- 
bution of  authority,  and  for  confiding  more  and  more  m the  intel- 
ligence and  virtue  of  the  people ; and  therefore  it  is  that,  in  these 


POWERS  OF  THE  SENATE. 


465 


as  in  other  details  of  the  Constitution,  we  are  to  look  for  the  clew 
that  is  to  give  ns  the  ]nirpose  and  design,  quite  as  much  to  the 
practical  compromises  which  constantly  took  place  between  oppo- 
site interests,  as  to  any  triumph  of  any  one  of  opposite  theories. 

The  first  experiment  that  was  made  towards  a restriction  of 
the  power  of  the  Senate,  and  an  adjustment  of  its  relations  to  the 
other  departments,  was  the  preparation  of  a plan  by  which  the 
president  was  to  have  the  making  of  treaties,  and  the  appoint- 
ment of  ambassadors,  judges  of  the  Supreme  Court,  and  all  other 
officers  not  otherwise  provided  for,  by  and  with  the  advice  and 
consent  of  the  Senate.  The  trial  of  impeachments,  of  the  presi- 
dent included,  was  transferred  to  the  Senate,  and  the  trial  of  ques- 
tions of  boundary  was  placed,  like  other  controversies  between 
states,  within  the  scope  of  the  judicial  power.  The  choice  of  the 
president  was  to  be  made  in  the  first  instance  by  electors  appointed 
by  each  state,  in  such  manner  as  its  legislature  might  direct,  each 
state  to  have  a number  of  electors  equal  to  the  whole  number  of 
its  senators  and  representatives  in  Congress ; but  if  no  one  of  the 
persons  voted  for  should  have  a majority  of  all  the  electors,  or  if 
more  than  one  person  should  have  both  a majority  and  an  equal 
number  of  votes,  the  Senate  were  to  choose  the  president  from  the 
five  highest  candidates  voted  for  by  the  electors.  In  this  plan 
there  was  certainly  a considerable  increase  of  the  power  of  the 
president ; but  there  was  not  a sufficient  diminution  of  the  power 
of  the  Senate.  The  president  could  nominate  officers  and  nego- 
tiate treaties ; but  he  must  obtain  the  consent  of  the  body  by 
whom  he  might  have  been  elected,  and  by  whom  his  re-election 
might  be  determined,  if  he  were  again  to  become  a candidate.  It 
appeared,  therefore,  to  be  quite  necessary,  either  to  take  away  the 
revisionary  control  of  the  Senate  over  treaties  and  appointments, 
or  to  devise  some  mode  by  Avhich  the  jDresident  could  be  made 
personally  independent  of  that  assembly.  He  could  be  made  in- 
dependent only  by  taking  away  all  agency  of  the  Senate  in  his 
election,  or  by  making  him  ineligible  to  the  office  a second  time. 
There  were  two  serious  objections  to  the  last  of  these  remedies — ■ 
the  country  might  lose  the  services  of  a faithful  and  experienced 
magistrate,  whose  continuance  in  office  would  be  highly  impor- 
tant ; and  even  in  a case  where  no  pre-eminent  merit  had  chal- 
lenged a re-election,  the  effect  of  an  election  by  the  Senate  Avould 

I.~ 30 


466 


CONSTITUTIONAL  IIISTORT. 

always  be  pernicious,  and  must  be  visible  throughout  the  whole 
term”  of  the  incumbent  who  had  been  successful  over  four  other 
competitors. 

And,  after  all,  what  necessity  was  there  for  confiding  this  vast 
power  to  the  Senate,  opening  the  door  of  a small  body  to  the  cor- 
ruption  and  intrigue  for  which  the  magnitude  of  the  prize  to  be 
gained  and  to  be  given,  and  the  facility  for  their  exercise,  would 
furnish  an  enormous  temptation?  Was  it  so  necessary  that  the 
states  should  force  their  equality  of  privilege  and  of  power  into 
every  department  of  the  Constitution,  making  it  feU  not  only  in 
all  acts  of  legislation,  but  in  the  whole  administration  of  the  ex- 
ecutive and  judicial  duties?  Was  nothing  due  to  the  virtue  and 
sense  and  patriotism  of  a majority  of  the  people  of  the  United 
States  ? Might  they  not  reasonably  be  expected  to  constitute  a 
body  of  electors  who,  chosen  for  the  express  purpose,  and  dis- 
solved as  soon  as  their  function  had  been  discharged,  would  be 
able  to  make  an  upright  and  intelligent  choice  of  a chief  magis- 
trate from  among  the  eminent  citizens  of  the  Union  ? 

Questions  like  these,  posterity  would  easily  believe  without 
the  clear  record  that  has  descended  to  them,  must  have  anxiously 
and  deeply  employed  the  framers  of  the  Constitution.  They  were 
to  consider,  not  only  what  was  theoretically  fit  and  what  would 
practically  work  with  safety  and  success,  but  what  would  be  ac- 
cepted by  the  people  for  whom  they  were  forming  these  great 
institutions.  That  people  undoubtedly  detested  everything  in  the 
nature  of  a monarchy.  But  there  was  another  thing  which  they 
hated  with  equal  intensity,  and  that  was  an  oligarchy.  Their  ex- 
perience had  given  them  quite  as  much  reason  for  abhorring  the 
one  as  the  other.  Such,  at  least,  was  their  view  of  that  experi- 
ence A king,  it  is  true,  was  the  chief  magistrate  of  the  mother 
country  against  which  they  had  rebelled,  against  which  they  had 
fought  successfully  for  their  independence.  The  measures  that 
drove  them  into  that  resistance  were  executed  by  the  monarch ; 
but  those  measures  were  planned,  as  they  believed,  by  a ministry 
determined  to  enslave  them,  and  were  sanctioned  by  a Parliament 
in  which  even  the  so-called  popular  branch  was  then  but  another 
phase  of  the  aristocracy  which  ruled  the  empire.  The  worst  ene- 
my our  grandfathers  supposed  they  had  in  England,  throughou 
their  Eevolution,  was  the  ministerial  majority  of  that  House  ot 


POWERS  OF  THE  SENATE. 


4G7 


Commons,  made  up  of  placemen  sitting  for  rotten  boroughs,  the 
sons  of  peers,  and  the  country  gentlemen,  who  belonged  to  a caste 
as  much  as  their  first-cousins  A^dlo  sat  by  titles  in  the  House  of 
Lords.  Our  ancestors  did  not  know — they  went  to  their  graves 
without  knowing  — that  in  the  hard,  implacable  temper  of  the 
king,  made  harder  and  more  implacable  by  a narrow  and  bigoted 
conscientiousness,  was  the  real  cause  for  the  persistency  in  that 
fatal  policy  which  severed  these  colonies  from  his  crown. 

That  long  struggle  had  been  over  for  several  years,  and  its 
result  was  certainly  not  to  be  regretted  by  the  people  of  America. 
But  it  had  left  them,  as  it  naturally  must  have  left  them,  with 
as  strong  prejudices  and  jealousies  against  every  aristocratic  as 
against  every  monarchical  institution.  Public  liberty  in  England 
they  knew  might  consist  with  an  hereditary  throne,  and  with  a 
privileged  and  powerful  aristocracy.  But  public  liberty  in  Amer- 
ica could  consist  with  neither.  The  people  of  the  United  States 
could  submit  to  restraints ; they  could  recognize  the  necessity  for 
checks  and  balances  in  the  distribution  of  authority;  and  they 
understood  as  much  of  the  science  of  government  as  any  people 
then  alive.  But  an  institution — however  originating  and  however 
apparently  necessary  its  peculiar  construction  might  be — embrac- 
ing but  a small  number  of  persons,  with  power  to  elect  the  chief 
magistrate,  with  power  to  revise  every  appointment  from  a chief- 
justice  down  to  a tidewaiter,  with  power  to  control  the  president 
through  his  subordinate  agents,  with  power  to  reject  every  treaty 
that  he  might  negotiate,  and  with  power  to  sit  in  judgment  on 
his  impeachment,  they  would  not  endure.  We  have,  in  some 
revolutions  of  this  plan  of  government,”  said  Eandolph,  ‘Auade  a 
bold  stroke  for  monarchy.  We  are  now  doing  the  same  for  an 
aristocracy.” 

How  to  attain  the  true  intermediate  ground,  to  avoid  the  sub- 
stance of  a monarchy  and  the  substance  of  an  aristocracy,  and  yet 
not  to  found  the  system  on  a mere  democracy,  was  a problem  not 
easy  of  solution.  All  could  see  that  a government  extended  over 
a country  so  large,  which  was  to  have  the  regulation  of  its  com- 
merce, the  collection  of  great  revenues,  the  care  of  a vast  public 
domain,  the  superintendence  of  intercourse  with  hordes  of  savage 
tribes,  the  control  of  relations  with  all  the  nations  of  the  world, 
the  administration  of  a peculiar  juris23rudence,  and  the  protection 


4Qg  CONSTITUTIONAL  HISTORY. 

of  the  local  constitutions  from  violence,  must  have  an  army  and  a 
navy,  and  great  fiscal,  administrative,  and  judicial  establishments, 
embracing  a very  numerous  body  of  public  officers.  To  give  the 
appointment  of  such  a multitude  of  public  servants,  invested  with 
such  functions,  to  the  unchecked  authority  of  the  president,  would  ■ 
be  to  create  an  executive  with  power  not  less  formidable  and  real 
than  that  of  some  monarchs,  and  far  greater  than  that  of  others. 
No  one  desired  that  a sole  power  of  appointment  should  be  vested 
in  the  president  alone;  it  was  universally  conceded  that  there 
must  be  a revisionary  control  lodged  somewhere,  and  the  only 
question  was  where  it  should  be  placed.  That  it  ought  to  be  in 
a body  independent  of  the  executive,  and  not  in  any  council  of 
ministers  that  might  be  assigned  to  him,  was  apparent;  and  there 
was  no  such  body,  excepting  the  Senate,  which  united  the  neces- 
sary independence  with  the  other  qualities  needful  for  a right 

exercise  of  this  power.  ^ 4.  i 

The  negotiation  of  treaties  was  obviously  a function  that  should 

be  committed  to  the  executive  alone.  But  a treaty  might  under- 
take to  dismember  a state  of  part  of  its  territory,  or  might  other- 
wise affect  its  individual  interests;  and  even  where  it  concerned 
only  the  general  interests  of  all  the  states,  there  was  a great  un- 
wiliino-ness  to  intrust  the  treaty-making  power  exclusively  to  the 
president  Here  the  states,  as  equal  political  sovereignties,  were 
unwilling  to  relax  their  hold  upon  the  general  government;  and 
the  result  was  that  provision  of  the  Constitution  which  makes  the 
consent  of  two  thirds  of  the  Senators  present  necessary  to  the 
ratification  of  a treaty. 

But  if  it  was  to  have  these  great  overruling  powers,  the  Senate 
must  have  no  voice  in  the  appointment  of  the  executive.  There 
were  two  modes  in  which  the  election  might  be  arranged,  so  as  to 
prevent  a mutual  connection  and  influence  between  the  Senate 
and  the  president.  The  one  was,  to  allow  the  highest  number  of 
electoral  votes  to  appoint  the  president;'  the  other  was,  to  place 
the  eventual  election— no  person  having  received  a majority  of  all 
the  electoral  votes-in  the  House  of  Kepresentatives.  The  latter 
plan  was  finally  adopted,  and  the  Senate  was  thus  effectually  sei- 
ered  from  a dangerous  connection  with  the  executive. 


1 This  suggestion  was 


made  by  Hauulton.  Elliot,  V.  517. 


DISQUALIFICATIONS  OF  MEMBP:KS. 


4G9 


This  separation  liaving  been  effected,  the  objections  whicli  had 
been  urged  against  tlie  length  of  the  senatorial  term  became  of  little 
consequence.  In  the  preparation  of  the  plan  marked  out  in  the 
resolutions  sent  to  the  committee  of  detail,  the  Senate  had  been 
considered  chiefly  with  reference  to  its  legislative  function ; and 
the  purpose  of  those  who  advocated  a long  term  of  office  was  to 
establish  a body  in  the  government  of  sufficient  wisdom  and  firm- 
ness to  interpose  against  the  impetuous  counsels  and  levelling  ten- 
dencies of  the  democratic  branch.'  Six  years  was  adopted  as  an 
intermediate  period  between  the  longest  and  the  shortest  of  the 
terms  proposed ; and  in  order  that  there  might  be  an  infusion  of 
different  views  and  tendencies  from  time  to  time,  it  was  provided 
that  one  third  of  the  members  should  go  out  of  office  biennially." 
Still,  in  the  case  of  each  individual  senator,  the  period  of  six  years 
was  the  longest  of  the  limited  terms  of  office  created  by  the  Con- 
stitution. Under  the  Confederation  the  members  of  the  Congress 
had  been  chosen  annually,  and  were  always  liable  to  recall.  The 
people  of  the  United  States  were  in  general  strongly  disposed  to 
a frequency  of  elections.  A term  of  office  for  six  years  Avould  be 
that  feature  of  the  proposed  Senate  most  likely,  in  the  popular 
mind,  to  be  regarded  as  of  an  aristocratic  tendency.  If  united 
Avith  the  powers  that  have  just  passed  under  our  revieAv,  and  if  to 
those  poAvers  it  could  be  said  that  an  improper  influence  over  the 
executive  had  been  added,  the  system  Avould  in  all  probability  be 
rejected  by  the  people.  But  if  the  Senate  Avere  deprived  of  all 
agency  in  the  appointment  of  the  president  it  Avould  be  mere 
declamation  to  complain  of  their  term  of  office ; for  undoubtedly 
the  peculiar  duties  assigned  to  the  Senate  could  be  best  discharged 
by  those  Avho  had  had  the  longest  experience  in  them.  The  solid 
objection  to  such  a term  being  remoAmd,  the  complaint  of  aristo- 
cratic tendencies  Avould  be  confined  to  those  Avho  might  Avish  to 
find  plausible  reasons  for  opposition,  and  might  not  Avish  to  be 
satisfied  Avith  the  true  reasons  for  the  provision. 

Having  noAv  described  the  formation  and  the  special  poAvers  of 
the  tAvo  branches  of  the  legislature,  I proceed  to  inquire  into  the 
origin  and  history  of  the  disqualifications  to  Avhich  the  members 
Avere  subjected.  

^ Madison,  Hamilton,  Wilson,  and  Read.  Elliot,  V.  241-245.  June  26th 
Ibid. 


470 


CONSTITUTIONAL  HISTORY. 


The  Constitution  of  the  United  States  was  framed  and  estab- 
lished by  a generation  of  men  who  had  observed  the  operation 
upon  the  English  legislature  of  that  species  of  influence,  by  the 
crown  or  its  servants,  which,  from  the  mode  of  its  exercise,  not 
seldom  amounting  to  actual  bribery,  has  received  the  appropriate 
name  of  parliamentary  corruption.  That  generation  of  the  Amer- 
ican people  knew  but  little— they  cared  less— about  the  origin  of 
a method  of  governing  the  legislative  body  which  implies  an  open 
or  a secret  venality  on  the  part  of  its  members,  and  a willingness 
on  the  part  of  the  administration  to  purchase  their  consent  to  its 
measures.  What  they  did  know  and  what  they  did  regard  was, 
that  for  a long  succession  of  years  the  votes  of  members  of  Par- 
liament had  been  bought,  with  money  or  office,  by  nearly  every 
minister  wdio  had  been  at  the  head  of  affairs ; that,  if  this  practice 
had  not  been  introduced  under  the  prince  who  was  placed  upon 
the  throne  by  the  revolution  of  1688,  it  had  certainly  grown  to  a 
kind  of  system  in  the  hands  of  the  statesmen  by  whom  that  revo- 
lution was  effected,  and  had  attained  its  greatest  height  under  the 
first  two  princes  of  the  house  of  Hanover ; that  it  was  freely  and 
sometimes  shamefully  applied  tlirougliout  the  American  war ; and 
that,  dowm  to  that  day,  no  British  statesman  had  had  the  sagacity 
to  discover,  and  the  virtue  to  adopt,  a purer  system  of  administra- 
tion.‘  Whether  this  was  a necessary  vice  of  the  English  constitu- 
tion ; whether  it  was  inherent  or  temporary ; or  whether  it  was  only 
a stage  in  the  development  of  parliamentary  government,  destined 
to  pass  away  when  the  relations  of  the  representative  body  to  the 
people  had  become  better  settled— could  not  then  be  seen  even  in 
England.  But  to  our  ancestors,  when  framing  their  Constitutiou, 


1 In  Horace  Walpole’s  Memoirs  of  tlie  Reign  of  George  II.  there  is  an  anuis- 
jj^g  pai-allel — gravely  drawn,  however — between  the  mode  in  which  his  father, 
Sir  Robert,  “ traded  for  members,”  and  the  manner  in  which  Mr.  Pelham  carried 
on  his  corruption.  Lord  Mahon  has  called  Sir  Robert  Walpole  “ the  patron  and 
parent  of  parliamentary  corruption.”  (Hist,  of  England,  I.  2G8.)  But  both  IMr. 
Hallam  and  Mr.  Macaulay  say  that  it  originated  under  Charles  II.,  and  both  ad- 
mit that  it  was  practised  down  to  the  close  of  the  American  war.  (Ilallam’s  Const. 
Hist.,  III.  255,  25G,  351-35G;  Macaulay’s  Hist,  of  England,  III.  541-549.)  The 
latter,  in  a very  masterly  analysis  of  its  origin  and  history,  treats  it  as  a local  dis- 
ease, incident  to  the  growth  of  the  English  constitution.  It  must  be  confessed 
that  it  had  become  chronic. 


EXECUTIVE  INFLUENCE. 


471 

it  presented  itself  as  a momentous  fact,  whose  warning  was  not 
the  less  powertid  because  it  came  from  the  centre  of  institutions 
with  which  they  had  been  most  familiar,  and  from  the  country  to 
which  they  traced  their  origin — a country  in  which  parliamentary 
; government  had  had  the  fairest  chances  for  success  that  the  world 

• had  witnessed. 

i I et  it  would  not  have  been  easy  at  that  time,  as  it  is  not  at 
the  present,  and  as  it  may  never  be,  to  define  with  absolute  pre- 
, cision  the  true  limits  which  executive  influence  with  the  legislative 

• body  should  not  be  suffered  to  pass.  Still  less  is  it  easy  to  say 
that  such  influence  ought  not  to  exist  at  all ; ' although  it  is  not 

; difficult  to  say  that  there  are  methods  in  which  it  should  not  be 
suffered  to  be  exercised.  The  more  elevated  and  more  clear-sighted 
public  morality  of  the  present  age,  in  England  and  in  America, 
condemns  with  equal  severity  and  equal  justice  both  the  giver  and 
the  receiver  in  every  transaction  that  can  be  regarded  as  a pur- 
chase of  votes  upon  particular  measures  or  occasions,  whatever 
may  have  been  the  consideration  or  motive  of  the  bargain.  But 
wdiether  that  morality  goes,  or  ought  to  go,  further— w^hether  it 
includes,  or  ought  to  include,  in  the  same  condemnation,  every 
form  of  influence  by  wdiich  an  administration  can  add  extrinsic 
w^eight  to  the  merits  of  its  measures — is  a question  that  admits  of 
discussion. 

It  may  be  said,  assuming  the  good  intentions  of  an  administra- 
tion and  the  correctness  of  its  policy  and  measures,  that  its  policy 
i and  its  measures  should  address  themselves  solely  to  the  patriotism 
' and  sense  of  right  of  the  members  of  the  legislative  department. 

' I am  quite  aware  of  the  clanger  of  reasoning  from  tlie  circumstances  of  one 
; country  to  those  of  another,  even  in  the  case  of  England  and  the  United  States. 

But  I avail  myself,  in  support  of  the  text,  of  the  authority  of  a writer  whose  liigh 
; moral  tone  and  Avhose  profound  knowledge  of  the  Constitution  on  which  he  iras 
' written  unite  to  make  it  unnecessary  that  its  history  should  be  written  again;  I 
mean,  of  course,  IVIr.  Hallam.  He  pronounces  it  an  extreme  supposition,  and  not 
to  be  pretended,  that  Parliament  was  ever  “absolutely,  and  in  all  conceivable 
: circumstances,  under  the  control  of  the  sovereign,  whether  through  intimidation 
> or  corrupt  subservience.”  “ But,”  he  adds,  “ as  it  would  equally  contradict  noto- 
i nous  truth  to  assert  that  every  vote  has  been  disinterested  and  independent,  the 
i degree  of  influenee  irliich  ought  to  he  permitted,  or  which  has  at  any  time  existed, 

' heroines  one  of  the  most  important  subjects  in  our  constitutional  policy:^  Const' 
Hist.,  III.  351. 


472 


CONSTITUTIONAL  HISTORY. 


But  an  ever-active  patriotism  and  a never-failing  sense  of  right 
are  not  always,  if  often,  to  be  found  ; the  members  of  a legislative 
body  are  men,  with  the  imperfections,  the  failings,  and  the  pas- 
sions of  men,  and  if  pure  patriotism  and  right  perceptions  of  duty 
are  alone  relied  upon,  they  may,  and  sometimes  inevitably  will,  be 
found  wanting.  On  the  other  hand,  it  is  just  as  true  that  the  per- 
sons composing  every  administration  are  mere  men,  and  that  it 
will  not  do  to  assume  their  wisdom  and  good  intentions  as  the 
sole  foundations  on  which  to  rest  the  public  security,  leaving 
them  at  liberty  to  use  all  the  appliances  that  may  be  found  effect- 
ual for  gaining  right  ends,  and  overlooking  the  character  of  the 
means.  One  of  the  principal  reasons  for  the  establishment  of  dif- 
ferent departments  in  the  class  of  governments  to  which  ours  be- 
longs is,  that  perfect  virtue  and  unerring  wisdom  are  not  to 
be  predicated  of  any  man  in  any  station.  If  they  were,  a simple 
despotism  would  be  the  best  and  the  only  necessary  form  of 
government. 

All  correct  reasoning  on  this  subject,  and  all  true  construc- 
tion of  governments  like  ours,  must  commence  with  two  proposi- 
tions, one  of  which  embraces  a truth  of  political  science,  and  the 
other  a truth  of  general  morals.  The  first  is  that,  while  the  dif- 
ferent functions  of  government  are  to  be  distributed  among  differ- 
ent persons,  and  to  be  kept  distinctly  separated,  in  order  that  there 
may  be  both  division  of  labor  and  checks  against  the  abuse  of 
power,  it  is  occasionally  necessary  that  some  room  should  be 
allowed  for  supplying  the  want  of  wisdom  or  virtue  in  one  de- 
partment by  the  wisdom  or  virtue  of  another.  In  matters  of  gov- 
ernment depending  on  mere  discretion,  unlimited  confidence  can- 
not with  safety  be  placed  anywhere.'  The  oth'er  proposition  is 

1 The  position  and  functions  of  the  judiciary,  after  proper  measures  iiave  been 
taken  to  secure  individual  capacity  and  integrity,  do  admit  and  require  what 
may  be  called  absolute  confidence.  That  is  to  say,  their  action  is  not  only  final 
and  conclusive,  but  it  is  never  legitimately  open  to  the  influence  of  any  other 
department.  The  reason  is,  that  their  action  does  not  proceed  from  individual 
discretion,  but  is  regulated  by  the  principles  of  a moral  science,  whose  existence 
is  wholly  independent  of  the  will  of  the  particular  judge.  Whereas  the  action 
of  both  the  executive  and  the  legislative  departments,  within  the  limits  prescribed 
to  it  by  the  fundamental  law,  involves  the  exercise,  to  a wide  extent,  of  mere  indi- 
vidual discretion.  The  remedy  for  a failure  in  tlu^  judge  to  justify  the  confidence 
reposed  in  him  is,  therefore,  only  by  iinpeachmcnt. 


EXECUTIVE  INFLUENCE. 


473 


the  very  plain  axiom  in  morals  that,  while  in  all  human  transac- 
tions there  may  be  bad  means  employed  to  elFect  a worthy  object, 
the  character  of  those  means  can  never  be  altered,  nor  their  use 
justilied,  by  the  character  of  the  end.  With  these  two  pro2)osi- 
tions  admitted,  what  is  to  be  done  is  to  discover  that  arrangement 
of  the  powers  and  relations  of  the  different  departments  whose 
acts  involve,  more  or  less,  the  exercise  of  pure  discretion,  Avliich 
will  give  the  best  effect  to  both  of  these  truths ; and  as  all  gov- 
ernment and  all  details  of  government,  to  be  useful,  must  be  prac- 
tically adapted  to  the  nature  of  man,  it  Avill  be  found  that  an 
approximation  in  practice  to  a perfect  theory  is  all  that  can  be 
attained. 

Thus  the  general  duties  and  poAvers  of  the  legislati\^e  and  the 
executiA^e  departments  are  capable  of  distinct  separation.  The 
one  is  to  make,  the  other  is  to  execute,  the  laAvs.  But  execution 
of  the  laAvs  of  necessity  inA’-olves  administration,  and  administra- 
tion makes  it  necessary  that  there  should  be  an  executive  policy. 
To  carry  out  that  policy  requires  new  laAvs  ; authority  must  be 
obtained  to  do  acts  not  before  authorized ; and  supplies  must  be 
perpetually  reneAved.  The  executive  stands,  therefore,  in  a close 
relation  to  the  legislative  department — a relation  Avhich  makes  it 
necessary  for  the  one  to  appeal  frequently,  and  indeed  constantly, 
to  the  discretion  of  the  other.  If  the  executive  is  left  at  liberty 
to  purchase  Avhat  it  believes  or  alleges  to  be  the  right  exercise  of 
that  discretion,  by  the  inducements  of  money  or  office  applied  to 
a particular  case,  the  rule  of  common  morals  is  violated,  conscience 
becomes  false  to  duty,  and  corruption,  having  once  entered  the 
body  politic,  may  be  employed  to  effect  bad  ends  as  Avell  as  good. 
Xay,  as  bad  ends  Avill  stand  most  in  need  of  its  influence,  it  Avill 
be  applied  the  most  grossly  Avhere  the  object  to  be  attained  is  the 
most  culpable.  On  the  other  hand,  if  the  members  of  the  legis- 
tiv^e  body,  by  being  made  incapable  of  accepting  the  higher  or 
more  lucrative  offices  of  state,  are  cut  off  from  those  inducements 
to  right  conduct  and  a true  ambition  Avhich  the  imperfections  of 
our  nature  haA^e  made  not  only  poAA^erful,  but  sometimes  neces- 
sary aids  to  Aurtue,  the  public  serAuce  may  ha\"e  no  other  security 
than  their  uncertain  impulses  or  imperfect  judgments.  In  the 
midst  of  such  tendencies  to  opposite  mischiefs,  all  that  human  Avis- 
dom  and  foresight  can  do  is  to  anticipate  and  prevent  the  evils  of 


CONSTITUTIONAL  HISTORY. 


47T 

both  extremes  by  provisions  which  will  guard  both  the  interests 
oi  morality  and  the  interests  of  political  expediency  as  completely 
as  circumstances  will  allow. 

I am  persuaded  it  was  upon  such  principles  as  I have  thus 
endeavored  to  state  that  the  framers  of  our  national  Constitution 
intended  to  regulate  this  very  difficult  part  of  the  relations  between 
the  executive  and  the  legislature.  During  a considerable  period, 
however,  of  their  deliberations  on  the  disabilities  to  which  it  Avould 
be  proper  to  subject  the  members  of  the  latter  department,  they 
had  another  example  before  them  besides  that  afforded  by  the 
history  of  parliamentary  corruption  in  England.  The  Congress 
of  the  Confederation  had  the  sole  power  of  appointment  to 
offices  under  the  authority  of  the  United  States  5 and  althougli 
there  is  no  reason  to  suppose  that  body  at  any  time  to  have  been 
justly  chargeable  with  corrupt  motives,  there  were  complaints  of 
the  frequency  with  which  it  had  filled  the  offices  which  it  had  cre- 
ated with  its  own  members.  In  these  complaints  the  people  over- 
looked the  justification.  They  forgot  that  the  nature  of  the  gov- 
ernment and  the  circumstances  of  the  country  rendered  it  difficult 
for  an  assembly  which  both  made  and  filled  the  offices,  and  wdiich 
exercised  its  functions  at  a time  when  the  state  governments  ab- 
sorbed by  far  the  greater  part  of  the  interests  and  attention  of 
their  citizens,  to  find  suitable  men  out  of  its  own  ranks.  In  that 
condition  of  things  it  might  have  been  expected— and  it  implies 
no  improper  purpose — that  offices  would  be  sometimes  framed  or 
regulated  with  a view  to  their  being  filled  by  particular  peisons. 
But  the  complaints  existed the  evil  was  one  that  tended  con- 
stantly to  become  worse;  and,  in  framing  the  new  government, 
this  was  the  first  aspect  in  which  the  influence  of  office  and  emol- 
uments presented  itself  to  the  Convention. 

For  when  the  Virginia  members,  through  Edmund  Kandolph, 


^ The  legislature  of  Massaclmsetts  liad,  before  Congress  recommended  the 
national  Convention,  instructed  its  delegates  in  Congress  not  to  agree  to  any 
modification  of  the  fifth  Article  of  the  Confederation,  which  prohibited  the 
members  of  Congress  from  holding  any  office  under  the  United  States  for  which 
they  or  any  other  person  for  their  benefit  could  receive  any  salary,  fee,  or  emolu- 
ment. This  instruction  was  repealed  by  the  unqualified  manner  m winch  the 
state  accepted  the  recommendation  for  a national  Convention.  Rut  it  shows  the 
sentiment  of  the  state  on  this  point,  and  it  also  show’s  the  jealousy  that  was  felt. 


475 


disqualification  for  office. 

broiiglit  forward  tlieir  scheme  of  government,  they  not  only  gave 
the  executive  no  power  of  appointment  to  any  office,  but  they 
proposed  to  vest  the  aj)})ointment  of  both  the  executive  and  the 
judiciary  in  tlie  legislature.  Hence  tliey  felt  the  necessity  of  guard- 
ing  against  the  abuse  that  might  follow  if  the  members  of  the 
legislature  were  to  be  left  at  liberty  to  appoint  each  other  to 
offi'ce  an  abuse  Avhich  they  knew  had  been  imputed  to  the  Con- 
gress, and  which  they  declared  had  been  grossly  practised  by 
their  own  legislature.^  They  proposed,  therefore,  to  go  beyond 
the  Confederation,  and  to  make  the  members  of  both  branches 
ineligible  to  any  office  established  under  the  authority  of  the 
United  States  (excepting  those  peculiarly  belonging  to  their  own 
functions)  daring  their  term  of  service  and  for  one  year  after  its 
expiration.  This  provision  passed  the  committee  of  the  whole ; 
but  in  the  Convention,  on  a motion  made  by  Mr.  Gorham  to  strike 
it  out,  the  votes  of  the  states  were  divided.  An  effort  was  then 
made  by  Mr.  Madison  to  find  a middle  ground  between  an  eligi- 
bility in  all  cases  and  an  absolute  disqualification.  If  the  unnec- 
essary creation  of  offices  and  the  increase  of  salaries  was  the  prin- 
cipal evil  to  be  anticipated,  he  believed  that  the  door  might  be 
shut  against  that  abuse,  and  might  properly  be  left  open  for  the 
appointment  of  members  to  places  not  affected  by  their  own  votes, 
as  an  encouragement  to  the  legislative  service.  But  there  were 
sev  eral  of  the  stern  patriots  of  the  Convention  who  insisted  on  a 
total  exclusion,  and  who  denied  that  there  was  any  such  necessitv 
for  holding  out  inducements  to  enter  the  legislature.*  This  was  a 
question  on  which  different  minds,  of  equal  sagacity  and  equal 
purity,  would  naturally  arrive  at  different  conclusions.  Still,  it  is 
apparent  that  the  mischiefs  most  apprehended  at  the  time  of  Mr. 
Madison  s proposition  would  be  in  a great  degree  prevented  by 
taking  from  the  legislature  the  power  of  appointing  to  office  ; and 
that  this  modification  of  the  system  was  what  w^as  needed  to  make 
his  plan  a true  remedy  for  the  abuses  that  had  been  displayed  in 
our  own  experience.  The  stigma  of  venality  cannot  properly  be 
applied  to  the  laudable  ambition  of  rising  into  the  honorable  offices 
of  a free  government ; and  if  the  opportunity  to  create  places,  or  to 


^ See  the  assertion  by  Mr.  Mason,  and  tlie  admission  by  Mr.  Madison,  Elliot,  V. 

^ Butler,  Mason,  and  Rutledge. 


47G 


CONSTITUTIONAL  HISTORY. 


increase  their  emoluments,  and  then  to  secure  those  places,  is  taken 
away,  by  vesting  the  appointment  in  the  executive,  the  question 
turns  mainly  on  the  relations  that  ought  to  exist  between  that 
department  and  the  legislature.-  But  Mr.  Madison’s  suggestion 
was  made  before  it  was  ascertained  that  the  executive  would  have 
any  power  of  appointment,  and  it  was  accordingly  rejected  a 
majority  of  the  delegations  considering  it  best  to  retain  the  ineli- 
gibility in  all  cases,  as  proposed  by  the  Virginia  plan.‘  In  this 
way  the  disqualification  became  incorporated  into  the  first  draft 
of  the  Constitution,  prepared  by  the  committee  of  detail." 

But  by  this  time  it  was  known  that  a large  part  of  the  patron- 
age of  the  government  must  be  placed  in  the  hands  of  the  presi- 
dent ; for  it  had  been  settled  that  he  was  to  appoint  to  all  offices 
not  otherwise  provided  for,  and  the  cases  thus  excepted  wmre  those 
of  judges  and  ambassadors,  which  stood,  in  this  draft  of  the  Con- 
stitution, vested  in  the  Senate.  A strong  opposition  to  this  ar- 
rangement, however,  had  already  manifested  itself,  and  the  result 
was  very  likely  to  be — as  it  in  fact  turned  out  that  neaily  the 
whole  of  the  appointments  would  be  made  on  the  nomination  of 
the  president,  even  if  the  Senate  wmre  to  be  empowered  to  con- 
firm or  reject  them.  Accordingly,  wdien  this  clause  came  under 
consideration,  the  principle  of  an  absolute  disqualification  for  office 
was  vigorously  attacked,  and  as  vigorously  defended.  The  incon- 
venience and  impolicy  of  excluding  officers  of  the  army  and  navy 
from  the  legislature ; of  rendering  it  impossible  for  the  executive 
to  select  a commander-in-chief  from  among  the  members,  in  cases 
of  pre-eminent  fitness ; of  refusing  seats  to  the  heads  of  executi\  e 
departments  j and  of  closing  the  legislature  as  an  avenue  to  other 
branches  of  the  public  service— were  all  strenuously  urged  and  de- 
nied." At  length  a middle  course  became  necessary,  to  reconcile 
all  opinions.  By  a very  close  vote  the  ineligibility  was  restrained 
to  cases  in  which  the  office  had  been  created,  or  the  emolument  of 


1 Two  states  only,  Connecticut  and  New  Jersey,  voted  for  Madison’s  amend- 
ment. June  23d.  Elliot,  V.  230-233. 

2 The  disqualification,  as  applied  to  members  of  both  houses,  was  incorpo- 
rated into  one  clause.  Art.  VI.  § 9 of  the  draft  of  the  committee  of  detail. 
Elliot,  V.  377. 

3 See  the  debate,  August  14th.  Elliot,  V.  420-425. 


SEATS  FOR  HEADS  OF  DEPARTMENTS. 


477 


it  increased,  during  the  term  of  membership and  a seat  in  the 
legislature  was  made  incompatible  with  any  other  office  under 
the  United  States.’ 

Some,  at  least,  of  the  probable  sources  of  corruption  were  cut 
off  by  these  provisions.  The  executive  can  make  no  bargain  for 
a vote,  by  the  ])romise  of  an  office  which  has  been  acted  upon  by 
the  member  whose  vote  is  sought  for;  and  there  can  be  no  body 
of  pkicemen,  ready  at  all  times  to  sell  their  votes  as  the  price  for 
which  they  are  permitted  to  retain  their  places.  At  the  same 
time  the  executive  is  not  deprived  of  the  influence  which  attends 
the  power  of  appointing  to  offices  not  created,  or  the  emoluments 
of  which  have  not  been  increased,  by»  any  Congress  of  which  the 
person  appointed  has  been  a member.  This  influence  is  capable  of 
abuse ; it  is  also  capable  of  being  honorably  and  beneflcially  ex- 
erted. Whether  it  shall  be  employed  corruptly  or  honestly,  for 
good  or  for  bad  purposes,  is  left  by  the  Constitution  to  the  re- 
straints of  personal  virtue  and  the  chastisements  of  public  opinion. 

A serious  question,  however,  has  been  made,  whether  the  in- 
terests of  the  public  service,  involved  in  the  relations  of  the  two 
departments,  would  not  have  been  placed  upon  a better  footing  if 
some  of  the  higher  officers  of  state  had  been  admitted  to  hold 
seats  in  the  legislature.  Under  the  English  Constitution  there  is 
no  practical  difficulty,  at  least  in  modern  times,  in  determining 
the  general  principle  that  is  to  distinguish  between  the  class  of 
officers  who  can,  and  those  who  cannot,  be  usefully  allowed  to 
have  seats  in  the  House  of  Commons.  The  principle  which,  after 
much  inconsistent  legislation  and  many  abortive  attempts  to  leg- 
islate, has  generally  been  acted  on  since  the  reign  of  George  II., 
is,  that  it  is  both  necessary  and  useful  to  have  in  that  House  some 
of  the  higher  functionaries  of  the  administration ; but  that  it  is 
not  at  all  necessary,  and  not  useful,  to  allow  the  privilege  of  sit- 
ting in  Parliament  to  subordinate  officers.^  The  necessity  of  the 
case  arises  altogether  from  the  peculiar  relations  of  the  ministry 


^ Ihere  was  a majority  of  only  one  state  in  favor  of  this  principle.  Elliot, 
V.  506. 

Thi.s  provision  received  a nnanimons  vote.  Ibid. 

^ ' For  the  history  of  what  have  been  called  place-bills,  see  Hallain’s  Const. 
Hist.,  in.  255,  256,  351 ; Macaulay,  IV.  336-338,  311,  312,  479,  480,  528. 


CONSTITUTIONAL  HISTORY. 


478 

to  the  crown,  and  of  the  latter  to  the  Commons.  If  the  executive 
government  were  not  admitted,  through  any  of  its  members,  to 
explain  and  vindicate  its  measures,  to  advocate  new  grants  of  au- 
thority, or  to  defend  the  prerogatives  of  the  crown,  the  popular 
branch  of  the  legislature  would  either  become  the  predominant 
power  in  the  state,  or  sink  into  insignificance.  This  is  conceded 
by  the  severest  writers  on  the  English  government. 

But  when  wm  pass  from  a civil  polity  which  it  has  taken  cen- 
turies to  produce,  and  which  has  had  its  departments  adjusted 
much  less  by  reference  to  exact  principles  than  by  the  results  of 
their  successive  struggles  for  supremacy  over  each  other,  and 
when  we  come  to  an  original  distribution  of  powers,  in  the  ar- 
rangements of  a Constitution  made  entire  and  at  once  by  a single 
act  of  the  national  will,  we  must  not  give  too  much  effect  to  anal- 
ogies which,  after  all,  are  far  from  being  complete.  In  preparing 
the  Constitution  of  the  United  States  its  framers  had  no  prerog- 
ative in  any  way  resembling  that  of  the  crown  of  England  to 
consider  and  provide  for.  The  separate  powers  to  be  conferred 
on  the  chief  magistracy— aside  from  its  concurrence  in  legislation 
—were  simply  executive  and  administrative ; the  office  was  to  be 
elective,  and  not  hereditary;  and  its  functions,  like  those  of  the 
legislature,  were  to  be  prescribed  with  all  the  exactness  of  wffiich 
a written  instrument  is  capable.  There  was,  therefore,  little  of 
such  danger  that  the  one  department  would  silently  or  openly 
encroach  on  the  rights  or  usurp  the  powers  of  the  other,  as  there 
is  where  there  exists  hereditary  right  on  the  one  side  and  custom- 
ary right  on  the  other,  and  where  the  boundaries  between  the 
two  departments  are  to  be  traced  by  the  aid  of  ancient  tiaditions, 
or  collected  from  numerous  and  perhaps  conflicting  precedents. 
There  was  no  such  necessity,  therefore,  as  there  is  in  England,  for 
placing  members  of  the  administration  in  the  legislature,  in  order 
to  preserve  the  balance  of  the  Constitution.  The  sole  question 
with  us  was,  whether  the  public  convenience  required  that  the 
administration  should  be  able  to  act  directly  upon  the  course  of 
legislation.  The  prevailing  opinion  was  that  this  was  not  required. 
This  opinion  was  undoubtedly  formed  under  the  fear  of  coriup- 
tion  and  the  jealousy  of  executive  power,  chiefly  produced— and 
justly  produced— by  the  example  of  what  had  long  existed  in  Eng- 
land!^ That  the  error,  if  any  was  committed,  lay  on  the  safer  side 


ELECTIONS  OF  SENATORS  AND  REPRESENTATIVES. 

none  can  doubt.  It  is  possible  that  the  chances  of  a corrupt  influ- 
ence would  not  have  been  increased,  and  that  the  opportunities 
for  a salutary  influence  might  have  been  enlarged— as  it  is  highly 
probable  that  the  convenience  of  communication  would  have  been 
promoted — if  some  of  the  higher  officers  of  state  could  have  been 
allowed  to  hold  seats  in  either  house  of  Congress.  But  it  is  diffi- 
cult to  see  how  this  could  have  been  successfully  practised  under 
the  system  of  rej^resentation  and  election  which  the  framers  of 
the  Constitution  were  obliged  to  establish  ; and  perhaps  this  is  a 
decisive  answer  to  the  objection.' 

Among  the  powers  conceded  by  the  Constitution  to  the  legis- 
lature of  each  state  is  that  of  prescribing  the  time,  place,  and  man- 
ner of  holding  the  elections  of  its  senators  and  representatives  in 
Congress.  This  provision"  originated  with  the  committee  of  de- 
tail ; but,  as  it  was  reported  by  them,  there  was  no  other  author- 
ity reserved  to  Congress  itself  than  that  of  altering  the  regulations 
of  the  states ; and  this  authority  extended  as  well  to  the  place  of 
choosing  the  senators,  as  to  all  the  other  circumstances  of  the 
election."  In  the  Convention,  however,  the  authority  of  Congress 
was  extended  beyond  the  alteration  of  state  regulations,  so  as  to 
embrace  a power  to  make  rules,  as  well  as  to  alter  those  made  by 
the  states.  But  the  place  of  choosing  the  senators  was  excepted 
altogether  from  this  restraining  authority,  and  left  to  the  states.' 


' Mr.  Justice  Story  has  suggested  tliat,  “if  it  would  not  have  been  safe  to 
trust  the  heads  of  departments,  as  representatives,  to  the  choice  of  the  people  as 
their  constituents,  it  would  have  been  at  least  some  gain  to  have  allowed  them 
a seat,  like  territorial  delegates,  in  the  House  of  Representatives,  where  they 
might  freely  debate  without  a title  to  vote.”  (Commentaries  on  the  Constitution, 
I.  § 869.)  An  officer  of  an  executive  department,  thus  admitted  to  a seat  in 
Congress,  must  have  been  placed  there  merely  in  virtue  of  his  offiee,  by  a special 
provision.  He  could  have  represented  no  real  constituency,  and  must  therefore 
have  had  an  anomalous  position.  A territorial  delegate  is  admitted  as  the  rep- 
resentative of  a dependency,  somewhat  colonial  in  its  nature,  whose  inhabitants 
are  not  on  an  equal  footing  with  the  constituencies  of  the  states.  He  has,  there- 
fore, no  vote.  When  speaking  for  the  interests  of  those  whom  he  represents,  he 
IS  in  somewhat  the  same  attitude  as  counsel  admitted  to  be  heard  at  the  bar  of 
the  House.  Whether  the  head  of  an  executive  dejiartment  could  with  dignity 
and  convenience  be  plaeed  in  a similar  position,  admits  at  least  of  grave  do'ubt. 

Art.  I.  § 4 of  the  Constitution.  3 ^rt.  VI.  § 1 of  the  first  draft. 

4 Madison,  Elliot,  V.  401,  402  ; Journal,  Elliot,  I.  309. 


^3Q  CONSTITUTIONAL  HISTORY. 

Mr.  Madison,  in  his  minutes,  adds  the  explanation,  that  the  power 
of  Congress  to  inalce  regulations  was  supplied,  m order  to  enable 
them  to  regulate  the  elections,  if  the  states  should  fail  or  refuse  to 
do  so.'  But  the  text  of  the  Constitution,  as  finally  settled,  gives 
authority  to  Congress  at  any  time  ” to  “ make  or  alter  such  reg- 
ulations and  this  would  seem  to  confer  a power  which,  when 
exercised,  must  be  paramount,  whether  a state  regulation  exists 
at  the  time  or  not. 

There  is  one  other  peculiarity  of  the  American  legislature,  of 
which  it  is  proper  in  this  connection  to  give  a brief  account : name- 
ly, the  compensation  of  its  members  for  their  public  services.  In 
the  plan  presented  by  the  Virginia  delegation  it  was  proposed 
that  the  members  of  both  branches  should  receive  “ liberal  sti- 
ijends but  it  was  not  suggested  whether  they  were  to  be  paid  by 
the  states,  or  from  the  national  treasury.  The  committee  of  the 
whole  determined  to  adopt  the  latter  mode  of  payment;  and  as 
the  representation  in  both  branches,  according  to  the  first  decis- 
ion, was  to  be  of  the  same  character,  no  reason  was  then  suggested 
for’making  a difference  in  the  source  of  their  compensation.  But 
when  the  "construction  of  the  Senate  was  considered  in  the  Con- 
vention the  idea  was  suggested  that  this  body  ought  in  some  way 
to  represent  wealth  ; and  it  was  apparently  under  the  influence  of 
this  suggestion  that,  after  a refusal  to  provide  for  a payment  of 
the  semators  by  their  states,  payment  out  of  the  national  treasury 
was  stricken  from  the  resolution  under  debate.’  There  was  thus 
introduced  into  the  resolution  sent  to  the  committee  of  detail  a 
discrepancy  between  the  modes  of  compensating  the  members  of 
the  two  branches ; for  while  the  members  of  the  House  were  to 
be  paid  “ an  adequate  compensation  ” out  of  “ the  public  treasury, 
the  Senate  were  to  receive  “ a compensation  for  the  devotion  of 
their  time  to  the  public  service,”  but  the  source  of  payment  was 
not  designated.  But  when  the  whole  body  of  those  resolutions 
had  been  acted  on,  the  character  of  the  representation  in  the  Sen- 
ate had  been  settled,  and  the  idea  of  its  being  made  a representa- 
tion of  W'ealth,  in  any  sense,  had  been  rejected.  The  committee 
of  detail  had,  therefore,  in  giving  effect  to  the  decisions  of  the 
Convention,  to  consider  merely  whether  the  members  of  the  two 


1 Elliot,  V.  403. 


’ Elliot,  V.  247. 


1  M P E A C II  M ENTS. 


481 


branches  should  be  paid  by  their  states,  or  from  the  national  treas- 
ury ; and  for  the  purpose  of  making  the  same  provision  as  to  both, 
ami  in  order  to  avoid  the  question  whether  the  Constitution  should 
establish  the  amount,  or  should  leave  it  to  be  regulated  by  the 
Congress  itself,  they  provided  that  the  members  of  each  house 
should  receive  a compensation  for  their  services,  to  be  ascertained 
and  paid  by  the  state  in  which  they  should  be  chosen/ 

This,  however,  was  to  encounter  far  greater  evils  than  it 
avoided.  If  paid  by  their  states  the  members  of  the  national 
legislature  would  not  only  receiv-e  different  compensations,  but 
they  would  be  directly  subjected  to  the  prejudices,  caprices,  and 
political  purposes  of  the  state  legislatures.  Whatever  theory 
might  be  maintained  with  respect  to  the  relations  between  the 
representatives,  in  either  branch,  and  the  state  in  which  they  were 
chosen,  or  the  people  of  the  states,  to  subject  one  class  of  public 
servants  to  the  power  of  another  class  could  not  fail  to  produce 
the  most  mischievous  consequences.  A large  majority  of  the 
states,  therefore,  decided  upon  payment  out  of  the  national  treas- 
ury,^  and  it  was  finally  determined  that  the  rate  of  compensation 
should  not  be  fixed  by  the  Constitution,  but  should  be  left  to  be 
ascertained  by  law.® 

Among  the  separate  functions  assigned  by  the  Constitution  to 
the  houses  of  Congress  are  those  of  presenting  and  trying  impeach- 
ments. An  impeachment,  in  the  report  of  the  committee  of  detail, 
was  treated  as  an  ordinary  judicial  proceeding,  and  was  placed 
within  the  jurisdiction  of  the  Supreme  Court.  That  this  was  not 
in  all  respects  a suitable  provision  will  appear  from  the  following 
considerations.  Although  an  impeachment  may  involve  an  inquiry 
whether  a crime  against  any  positive  law  has  been  committed,  yet 
it  is  not  necessarily  a trial  for  crime ; nor  is  there  any  necessity,  in 
the  case  of  crimes  committed  by  public  officers,  for  the  institution 
of  any  special  proceeding  for  the  infliction  of  the  punishment  pre- 
scribed by  the  laws,  since  they,  like  all  other  persons,  are  amena- 
ble to  the  ordinary  jurisdiction  of  the  courts  of  justice  in  respect 
of  offences  against  positive  law.  The  purposes  of  an  impeachment 


1 Art.  VI.  § 10  of  t]ie  first  draft.  Elliot,  V.  378. 

2 :Massachnsetts  and  South  Carolina  in  the  negative. 

3 See  the  discussion  on  Art.  VI.  § 10  of  the  first  draft.  Elliot  V.  425-427 

I.— 31 


CONSTITUTIONAL  HISTORY. 


482 

lie  wholly  beyond  the  penalties  of  the  statute  or  the  customary 
law.  The  object  of  the  proceeding  is  to  ascertain  whether  cause 
exists  for  removing  a public  officer  from  office.  Such  a cause  may 
be  found  in  the  fact  that,  either  in  the  discharge  of  his  office,  or 
aside  from  its  functions,  he  has  violated  a law,  or  committed  what 
is  technically  denominated  a crime.  But  a cause  for  removal  from 
office  may  exist  where  no  offence  against  positive  law  has  been 
committed,  as  where  the  individual  has,  from  immorality,  or  im- 
becility, or  maladministration,  become  unfit  to  exercise  the  office. 
The  rules  by  which  an  impeachment  is  to  be  determined  are  there- 
fore peculiar,  and  are  not  fully  embraced  by  those  principles  or 
provisions  of  law  wdiich  courts  of  ordinary  jurisdiction  are  required 
to  administer. 

From  considerations  of  this  kind,  especially  when  applied  to 
the  impeachment  of  a president  of  the  United  States,  the  Conven- 
tion found  it  expedient  to  place  the  trial  in  the  Senate.  In  fact 
the  whole  subject  of  impeachments,  as  finally  settled  in  the  Con- 
stitution, received  its  impress  in  a great  degree  from  the  attention 
that  was  paid  to  the  bearing  of  this  power  upon  the  executive. 
Few  members  of  the  Convention  were  willing  to  constitute  a single 
executive,  with  such  powers  as  were  proposed  to  be  given  to  the 
president,  without  subjecting  him  to  removal  from  office  on  im- 
peachment ; and  when  it  was  perceived  to  be  necessary  to  confer 
upon  him  the  appointment  of  the  judges,  it  became  equally  neces- 
sary to  provide  some  other  tribunal  than  the  Supreme  Court  for 
the*^  trial  of  his  impeachment.  There  was  no  other  body  already 
provided  for  in  the  government  with  whom  this  jurisdiction  could 
be  lodged  excepting  the  Senate ; and  the  only  alternative  to  this 
plan  was  to  create  a special  tribunal  for  the  sole  purpose  of  trying 
impeachments  of  the  president  and  other  officers.  This  was  justly 
deemed  a manifest  inconvenience ; and  although  there  were  vari- 
ous theoretical  objections  suggested  against  placing  the  trial  in  the 
Senate,  on  the  question  being  stated  there  were  found  to  be  but 
two  dissentient  states.’  This  point  having  been  settled,  in  rela- 
tion to  impeachments  of  the  president,  the  trial  of  impeachments 
of  all  other  civil  officers  of  the  United  States  was,  for  the  sake  of 
uniformity,  also  confided  to  the  Senate.^  The  power  of  impeacli- 


Pcnnsylvaiiia  and  Virginia. 


“ See  Elliot,  V.  507,  528,  529. 


THE  VICE-PRESIDENT. 


483 


meiit  was  confined,  as  originally  proposed,  to  the  House  of  llepre- 
sentatives.* 

The  number  of  members  of  each  house  that  should  be  made  a 
quorum  for  the  transaction  of  business  gave  rise  to  a good  deal  of 
ditference  of  opinion.  The  controlling  reason  why  a smaller  num- 
ber than  a majority  of  the  members  of  each  house  should  not  be 
])ermitted  to  make  laws  Avas  to  be  found  in  the  extent  of  the  coun- 
try and  the  diversity  of  its  interests.  The  central  states,  it  was 
said,  could  always  have  their  members  present  with  more  con- 
venience than  the  distant  states  ; and,  after  some  discussion,  it  Avas 
determined  to  establish  a majority  of  each  house  as  its  quorum  for 
the  transaction  of  business,  giving  to  a smaller  number  poAver  to 
adjourn  from  day  to  daAq  and  to  compel  the  attendance  of  absent 
members.’ 

Provisions  making  each  house  the  judge  of  the  elections,  re- 
turns, and  qualifications  of  its  OAvn  members ; that  for  any  speech 
or  debate  in  either  house  no  member  shall  be  questioned  in  any 
other  place ; and  that  in  all  cases  except  treason,  felony,  or  breach 
of  the  peace,  the  members  shall  be  privileged  from  arrest  dur- 
ing their  attendance  at,  and  in  going  to  and  returning  from,  the 
sessions  of  their  respective  houses— Avere  agreed  to  without  any 
dissent.’ 

The  poAver  of  each  house  to  determine  the  rules  of  its  proceed- 
ings, to  punish  its  members  for  disorderly  behavior,  and  to  expel 
Avith  the  concurrence  of  tAvo  thirds,  was  agreed  to  with  general 
assent.'*  Each  house  Avas  also  directed  to  keep  a journal  of  its 
proceedings,  and  from  time  to  time  to  publish  the  same,  except- 
ing such  parts  as  may  in  their  judgment  require  secrecy ; and  one 
fifth  of  the  members  present  m either  house  AA^ere  empoAvered  to 
require  the  yeas  and  nays  to  be  entered  on  its  journal.’ 

The  report  of  the  committee  of  detail  had  made  no  proAusion 
for  such  an  ofiicer  as  the  Vice-President  of  the  United  States,  and 
had  therefore  declared  that  the  Senate,  as  Avell  as  the  House,  should 


1 As  to  the  other  provisions  of  the  Constitution  on  this  subject,  see  the  Index, 
verl).  Iinpeacliinent. 

* Elliot,  V.  405,  40G.  Art.  I.  § 5 of  the  Constitution. 

^ Elliot,  V.  406.  Constitution,  Art.  I.  §§  5,  6. 

•^Elliot,  V.  407.  Constitution,  Art.  I.  § 5. 


® Ibid. 


484:  CONSTITUTIONAL  HISTORY. 

choose  its  own  presiding  officer.  This  feature  of  their  report  re- 
ceived the  sanction  of  the  Convention ; but  subsequently,  when  it 
became  necessary  to  create  an  officer  to  succeed  the  President  of 
the  United  States  in  case  of  death,  resignation,  or  removal  from 
office,  the  plan  was  adopted  of  making  the  former  ex  officio  the 
presiding  officer  of  the  Senate,  giving  him  a vote  only  in  cases 
where  the  votes  of  the  members  are  equally  divided.*  To  this  was 
added  the  further  provision,  that  the  Senate  shall  choose,  besides 
all  its  other  officers,  a president  pro  tempore,  in  the  absence  of  the 
vice-president,  or  when  he  shall  exercise  the  office  of  President 
of  the  United  States."  The  House  of  Kepresentatives  were  em- 
powered to  choose  their  own  speaker,  and  other  officers,  as  origi- 
nally proposed." 

The  mode  in  which  laws  were  to  be  enacted  was  the  last  topic 
concerning  the  action  of  the  legislature  which  required  to  be  dealt 
with  in  the  Constitution.  The  principle  had  been  already  settled 
that  the  negative  of  the  president  should  arrest  the  passage  of  a 
law,  unless,  after  he  had  refused  his  concurrence,  it  should  be  passed 
bv  two  thirds  of  the  members  of  each  house.  In  order  to  give 
effect  to  this  principle,  the  committee  of  detail  made  the  following 
regulations,  which  were  adopted  into  the  Constitution  : That  every 
bill  which  shall  have  passed  the  two  houses,  shall,  before  it  be- 
come a law,  be  presented  to  the  President  of  the  United  States; 
that  if  he  approve  he  shall  sign  it,  but  if  not  he  shall  return  it, 
with  his  objections,  to  the  house  in  which  it  originated,  who  shall 
enter  the  objections  at  large  on  their  journal,  and  proceed  to  re- 
consider it ; that  if,  after  such  reconsideration,  two  thirds  of  that 
house  agree  to  pass  the  bill,  it  is  to  be  sent  with  the  objections  to 
the  other  house,  by  which  it  is  likewise  to  be  reconsidered,  and,  if 
approved  by  two  thirds  of  that  house,  it  is  to  become  a law ; but 
in  all  such  cases  the  votes  of  both  houses  are  to  be  determined  by 
yeas  and  nays  entered  upon  the  journal.  If  any  bill  be  not  re- 
turned by  the  president  within  ten  days  (Sundays  excepted)  after 
it  has  been  presented  to  him,  it  is  to  become  a law  in  like  manner 
as  if  he  had  signed  it,  unless  the  Congress  by  adjourning  prevent 
its  return,  in  which  case  it  is  not  to  become  a law.  All  orders, 
resolutions,  and  votes  to  which  the  concurrence  of  both  houses  is 


Elliot,  V.  507, 520.  Constitutiou,  Art.  I.  § 3. 


2 Ibid. 


=>  Art.  I.  § 2. 


PRESIDENT’S  NEGATIVE. 


485 

necessary  (except  on  a question  of  adjournment),  are  subject  to 
tliese  provisions.' 

The  two  important  differences  between  the  negative  thus 
vested  in  the  President  of  the  United  States  and  that  wliich  be- 
long to  the  King  of  England  are,  that  the  former  is  a qualified, 
while  the  latter  is  an  absolute,  power  to  arrest  the  passage  of  a 
law ; and  that  the  one  is  required  to  render  to  the  legislature  the 
reasons  for  his  refusal  to  approve  a bill,  while  the  latter  renders 
no  reasons,  but  simply  answers  that  he  will  advise  of  the  matter, 
which  is  the  parliamentary  form  of  signifying  a refusal  to  approve! 
The  provision  in  our  Constitution  which  requires  the  president  to 
communicate  to  the  legislature  his  objections  to  a bill  was  rendered 
necessary  by  the  power  conferred  upon  two  thirds  of  both  houses 
to  make  it  a law,  notwithstanding  his  refusal  to  sign  it.  By  this 
power,  which  makes  the  negative  of  the  president  a qualified  one 
only,  the  framers  of  the  Constitution  intended  that  the  two  houses 
should  take  into  consideration  the  objections  which  may  have  led 
the  president  to  withhold  his  assent,  and  that  his  assent  should  be 
dispensed  with,  if,  notwithstanding  those  objections,  two  thirds  of 
both  houses  should  still  approve  of  the  measure.  These  provisions, 
therefore,  on  the  one  hand,  give  to  the  president  a real  participa- 
tion in  acts  of  legislation,  and  impose  upon  him  a real  responsibil- 
ity for  the  measures  to  which  he  gives  his  official  approval,  while 
they  give  him  an  important  influence  over  the  final  action  of  the 
legislature  upon  those  which  he  refuses  to  sanction ; and,  on  the 
other  hand,  they  establish  a wide  distinction  between  his  negative 
and  that  of  the  Idng  in  England.  The  latter  has  none  but  an  ab- 
solute “ veto if  he  refuse  to  sign  a bill,  it  cannot  become  a law ; 
and  it  is  well  understood  that  it  is  on  account  of  this  absolute 
effect  of  the  refusal  that  this  prerogative  has  been  wholly  disused 
since  the  reign  of  ^Uilliam  III.,  and  that  the  practice  has  grown 
up  of  signifying,  through  the  ministry,  the  previous  opposition  of 
the  executive,  if  any  exists,  while  the  measure  is  under  discussion 
in  Parliament.  It  is  not  needful  to  consider  here  which  mode  of 
legislation  is  theoretically  or  practically  the  best.  It  is  sufficient  to 
notice  the  fact  that  the  absence  from  our  system  of  official  and  re- 
sponsib'le  advisers  of  the  president  having  seats  in  the  legislature 


^ Constitution,  Art.  I.  § 7. 


CONSTITUTIONAL  HISTORY. 

renders  it  impracticable  to  signify  his  views  of  a measure,  while  it  is 
under  the  consideration  of  either  house,  i or  this  reason,  and  be- 
cause the  president  himself  is  responsible  to  the  people  for  his  of- 
ficial acts,  and  in  order  to  accompany  that  responsibility  with  the 
requisite  power  both  to  act  upon  reasons  and  to  render  them,  our 
Constitution  has  vested  in  him  this  peculiar  and  qualified  negative.' 


1 A question  has  lieen  made,  whether  it  is  competent  to  two  thirds  of  the 
mcmhoTB  present  in  each  house  to  pass  a bill  notwithstanding  the  president’s  ob- 
iections  or  whether  the  Constitution  means  that  it  shall  be  passed  by  two  thirds 
;,f  all  the  members  of  eaoh  branch  of  the  legislature.  The  history  of  the  “ veto  ’’ 
in  the  Convention  seems  to  me  to  settle  this  question.  There  was  a change  of 
phraseolo^ry.  in  the  course  of  the  proceedings  on  this  subject,  which  indicates 
very  clearly  a change  of  intention.  The  language  employed  in  Hie  resolutions, 
in  all  the  stages  through  which  they  passed,  was,  that  “ The  national  executive 
shall  have  a right  to  negative  any  legislative  act,  which  shall  not  be  afterwards 
passed  by  two-third  parts  of  each  branch  of  the  national  legislature."  ^ Tins  was 
the  form  of  expression  contained  in  the  resolutions  sent  to  the  committee  of  de- 
tail ■ and  if  it  had  been  incorporated  into  the  Constitution  there  could  have  been 
no  question  but  that  its  meaning  would  have  been  that  the  bill  must  be  aftei- 
wai  ds  passed  by  two  thirds  of  all  the  members  to  which  each  branch  is  constitu- 
tionally entitled.  But  the  committee  of  detail  changed  this  expression,  and  cm- 
ployed  one  which  has  a technical  meaning,  that  meaning  being  made  technical 
by  the  Constitution  itself.  Before  the  committee  came  to  carry  out  the  resolu- 
tion relating  to  the  president’s  negative,  they  had  occasion  to  define  what  shot,  d 
constitute  a "house"  in  each  branch  of  the  legislature;  and  they  did  so  by  the 
provision  that  a majority  of  each  house  shall  constitute  a quorum  to  do  business. 
This  expression,  a “house,”  or  “each  house,”  is  several  times  employed  ,n  the 
Constitution  with  reference  to  the  faculties  and  power's  of  the  two  chainbeis 
respectively,  and  it  always  means,  when  so  used,  the  constitutional  quorum,  as- 
sembled for  the  transaction  of  business,  and  capable  of  transacting  business. 
Tills  same  expression  was  employed  by  the  committee  when  they  provided  for 
the  mode  in  which  a bill,  once  rejected  by  the  president,  should  be  again  brought 
before  the  lerrislative  bodies.  They  directed  it  to  be  returned  “ to  that  house  m 
,Mch  it  shall  hare  originated" is  to  say,  to  a constitutional  quorum  a ma- 
iority  of  which  passed  it  in  the  first  instance;  and  they  then  provided,  that,  it 
“ two  thirds  of  that  house  shall  agree  to  pass  the  bill,  it  shall  be  sent,  toget  ler 
with  the  objections,  to  the  other  house,  . . . and  if  approved  by  two  thirds  o 
that  HOUSE,  it  shall  become  a law.”  This  change  of  phraseology,  taken  in  con- 
nection with  the  obvious  iiicaiiing  of  the  term  “ house,”  as  used  in  the  Constitu- 
tion when  it  speaks  of  a chamber  con,,,etcnt  to  do  business,  shows  the  intention 
very  clearly.  It  is  a very  different  provision  from  what  would  have  existed  if 
the  phrase  “ two-third  parts  of  each  branch  of  the  national  legislature  had  been 
retained.  See  Elliot,  V.  849,  SIC,  878,  431,  530. 


SEAT  OF  GOVEIINMENT. 


487 


The  remaining  topic  tliat  demands  our  iiupirries,  respecting 
the  legislature,  I’elates  to  the  place  of  its  meeting.  The  Confed- 
eration was  a government  without  a capitol,  or  a seat ; a want 
which  seriously  impaired  its  dignity  and  its  elhciency,  and  sub- 
jected it  to  great  inconveniences ; at  the  same  time,  it  was  unable 
to  su})ply  the  defect.  Its  Congress,  following  the  example  of 
their  predecessors,  had  continued  to  assemble  at  Philadelphia, 

This  view  will  l)c  sustained  by  an  examination  of  all  the  instances  in  which 
the  votes  of  “ two  thirds  ” in  either  body  are  required.  Thus,  “ each  house  may 
determine  the  rules  of  its  proceedings,  punish  its  members  for  disorderly  be- 
havior, and,  icith  the  concurrence  of  two  thirds,  expel  a member.”  (Art.  I.  § 5.) 
The  context  of  the  same  article  defines  what  is  to  constitute  a “ house,”  and 
makes  it  clear  that  two  thirds  of  a “ house  ” may  expel.  That  this  was  the  in- 
tention is  also  clear  from  what  took  place  in  the  Convention.  ]\Ir.  Madison  ob- 
jected to  the  provision  as  it  stood  on  tlie  report  of  the  committee,  by  which  a 
mere  majority  of  a quorum  was  empowered  to  expel,  and,  on  his  motion,  the 
words  ” with  the  concurrence  of  two  thirds  ” were  inserted.  (Elliot,  V.  406,  407.) 
In  like  manner  the  fifth  Article  of  the  Constitution  empowers  Congress,  ^‘‘when- 
ever two  thirds  of  both  houses  shall  deem  it  necessary  f to  propose  amendments  to 
the  Constitution.  The  term  “ house  ” is  here  used  as  synonymous  with  a quorum. 

It  has  been  suggested,  however,  that  the  use  of  a positive  expression  in  re- 
lation to  the  action  of  the  Senate  upon  treaties  throws  some  doubt  upon  the 
meaning  of  the  term  “ two  thirds,”  as  used  in  other  parts  of  tlie  Constitution.  A 
treaty  requires  the  concurrence  of  “ two  thirds  of  the  senators  present;'"’  and  it 
has  been  argued  that  the  omission  of  this  term  in  the  other  cases  shows  that  two 
thirds  of  all  the  members  are  required  in  those  cases.  But  it  is  to  be  remem- 
bered that  the  Constitution  makes  a general  provision  as  to  what  shall  constitute 
a house  for  the  transaction  of  business;  that  when  it  means  that  a particular 
function  shall  not  be  performed  by  such  a house,  or  quorum,  it  establishes  the 
exception  by  a particular  provision,  as  when  it  requires  two  thirds  of  all  the 
states  to  be  present  in  the  House  of  Eepreseniatives  on  the  choice  of  a president, 
and  makes  a majority  of  all  the  states  necessary  to  a choice;  and  that  whether 
tile  function  of  the  Senate  in  approving  treaties  is  or  is  not  a part  of  the  business 
which  under  the  general  provision  is  required  to  be  done  in  a ‘‘  house”  or  quorum 
consisting  of  a majority  of  all  the  members,  the  Constitution  does  not  speak  of 
this  function  as  being  done  by  a “ house,”  but  it  speaks  of  the  “advice  and  con- 
sent of  the  Senatef  to  be  given  “ by  two  thirds  of  the  senators  present''  The 
use  of  the  term  “ present  ” was  necessary,  therefore,  in  this  connection,  because  no 
term  had  preceded  it  which  would  guide  the  construction  to  the  conclusion  in- 
tended ; but  in  the  other  cases,  tlie  previous  use  of  the  term  “house,”  defined  to 
be  a majority  of  all  the  members,  determines  the  sense  in  which  the  term  “two 
thirds”  is  to  be  understood,  and  makes  it,  as  I humbly  conceive,  two  thirds  of  a 
constitutional  quorum. 


488 


CONSTITUTIONAL  HISTORY. 


until  June,  1Y83 ; when,  as  we  have  already  seen,  in  consequence 
of  a mutiny  by  some  of  the  federal  troops  stationed  in  that  neigh- 
borhood, against  which  the  local  authorities  failed  to  protect 
them,  they  left  that  city,  and  reassembled  at  Princeton,  in  the 
state  of  New  Jersey,  in  the  halls  of  a college.  There,  in  the 
following  October,  a resolution  was  passed,  directing  that  build- 
ings for  the  use  of  Congress  should  be  erected  at  some  suitable 
place  near  the  Palls  of  the  Delaware  5 for  which  the  right  of  soil 
and  an  exclusive  jurisdiction  should  be  obtained.'  But  this  was 
entirely  unsatisfactory  to  the  Southern  States.  They  complained 
that  the  place  selected  was  not  central,  was  unfavorable  to  the 
Union,  and  unjust  to  them.  They  endeavored  to  procure  a re- 
consideration of  the  vote,  but  without  success."  Several  days 
were  then  consumed  in  fruitless  efforts  to  agree  on  a temporary 
residence ; and  at  length  it  became  apparent  that  there  was  no 
prospect  of  a general  assent  to  any  one  place,  either  for  a tem- 
porary or  for  a permanent  seat.  The  plan  of  a single  residence 
was  then  changed,  and  a resolution  was  passed,  providing  for  an 
alternate  residence  at  two  places,  by  directing  that  buildings  for 
the  use  of  Congress,  and  a federal  town,  should  also  be  erected  at 
or  near  the  lower  falls  of  the  Potomac,  or  Georgetown ; and  that 
until  both  places,  that  on  the  Delaware  and  that  on  the  Potomac, 
were  ready  for  their  reception,  Congress  should  sit  alternately, 
for  equal  periods  of  not  more  than  one  year  and  not  less  than 
six  months,  at  Trenton,  the  capital  of  the  state  of  New  Jersey, 
and  at  Annapolis,  the  capital  of  the  state  of  Maryland.  The 
president  was  thereupon  directed  to  adjourn  the  Congress,  on  the 
12th  of  the  following  November,  to  meet  at  Annapolis  on  the 
26th,  for  the  despatch  of  business.  Thither  they  accordingly  re- 
paired, and  there  they  continued  to  sit  until  June  3, 1 < 84.  A re- 
cess followed,  during  which  a committee  of  the  states  sat,  until 
Congress  reassembled  at  Trenton,  on  the  30th  of  the  following 
October. 

At  Trenton  the  accommodations  appear  to  have  been  alto- 
gether insufficient,  and  the  states  of  South  Carolina  and  Penn- 
sylvania proposed  to  adjourn  from  that  place."  The  plan  of  two 

1 October  6tb,  1783,  Journals,  VIII.  423.  ’ October  8th.  Ibid.,  424,  425. 

3 December  10th,  11th,  1784.  Journals,  X.  16-18. 


SEAT  OF  GOVERNMENT. 


480 


Capitols  in  different  places  was  then  rescinded,'  and  an  ordinance 
was  passed  for  the  ap])ointment  of  coniniissioners  to  establish  a 
seat  of  government  on  the  banks  of  the  Delaware,  at  some  point 
Avithin  eight  miles  above  or  below  the  lower  falls  of  that  river. 
Until  the  necessary  buildings  should  be  ready  for  their  reception, 
the  ordinance  provided  that  Congress  should  sit  at  the  city  of 
Xew  York."  When  assembled  there  in  January,  1785,  they  re- 
ceived and  accepted  from  the  corporation  an  offer  of  the  use  of 
the  City  Hall ; and  in  that  building  they  continued  to  hold  their 
sessions  until  after  the  adoption  of  the  Constitution." 

It  does  not  appear  that  any  steps  Avere  taken  under  the  ordi- 
nance of  1784,  or  under  any  of  the  previous  resolutions,  for  the 
establishment  of  a federal  toAA^n  and  a seat  of  government  at  any 
of  the  places  designated.  Whether  the  Congress  felt  the  Avant  of 
constitutional  poAver  to  carry  out  their  project,  or  Avhether  the 
Avant  of  means,  or  a difficulty  in  obtaining  a suitable  grant  of  the 
soil  and  jurisdiction,  Avas  the  real  impediment,  there  are  noAV  no 
means  of  determining.  It  seems  quite  probable,  however,  that, 
after  their  remoA-al  to  the  city  of  l^ew  York,  they  found  them- 
selves much  better  placed  than  they  or  their  predecessors  had 
ever  been  elsewhere;  and  as  the  discussions  respecting  a total 
revision  of  the  federal  system  soon  afterAA^ards  began  to  agitate 
the  public  mind,  the  plan  of  establishing  a seat  for  the  accommo- 
dation of  the  old  government  Avas  naturally  postponed. 

The  plan  itself,  on  paper,  Avas  a bold  and  magnificent  one.  It 
contemplated  a district  not  less  than  tAvo  and  not  more  than 
three  miles  square,  Avith  a federal  house  ” for  the  use  of  Con- 
gress; suitable  buildings  for  the  executive  departments;  official 
residences  for  the  president  and  secretary  of  Congress,  and  the 
secretaries  of  foreign  affairs,  of  AA^ar,  of  the  marine,  and  the  offi- 
cers of  the  treasury ; besides  hotels  to  be  erected  and  oAvned  by 
the  states  as  residences  for  their  delegates.  But  for  this  fine 
scheme  of  a federal  metropolis  an  appropriation  was  made  Avhich, 
even  in  those  days,  one  might  suppose,  Avould  scarcely  have  paid 
for  the  land  required.  The  commissioners  Avho  AA^ere  to  purchase 


’ December  20th,  21st.  Ibid.,  28,  24.  ^ Passed  December  23d.  Ibid.,  29. 

3 They  removed  from  it  October  2d,  1788,  on  a notice  from  the  mayor  of  the 
city  that  repairs  were  to  be  made. 


CONSTITUTIONAL  HISTORY. 


490 

the  site,  lay  out  the  town,  and  contract  for  the  erection  and  com- 
pletion of  all  the  public  edifices— excepting  those  which  were  to 
belong  to  the  states— “ in  an  elegant  manner,”  were  authorized 
to  draw  on  the  federal  treasury  for  a sum  not  exceeding  one 
hundred  thousand  dollars,  for  the  whole  of  these  purposes.  If 
we  are  to  understand  it  to  have  been  really  expected  and  intended 
that  this  sum  should  defray  the  cost  of  this  undertaking,  we  must 
either  be  amused  by  the  modest  requirements  of  the  Union  at 
that  day,  or  stand  amazed  at  the  strides  it  has  since  taken  in  its 
onward  career  of  prosperity  and  powder. 

In  truth,  however,  there  is  not  much  reason  to  suppose  that 
the  Congress  of  the  Confederation  seriously  contemplated  the 
establishment  of  a federal  city.  They  were  too  feeble  for  such 
an  undertaking.  They  could  pass  resolutions  and  ordinances  for 
the  purpose,  and  send  them  to  the  authorities  of  the  states— and 
if  a more  decent  attention  to  the  wants  and  dignity  of  the  federal 
body  was  excited,  it  was  well,  and  was  probably  the  effect  princi- 
pally intended.  If  they  had  actually  proceeded  to  do^  what  their 
resolution  of  1783  proposed— to  acquire  the  jurisdiction,  as  w^ell 
as  the  right  of  soil,  over  a tract  of  land— they  must  have  encoun- 
tered a serious  obstacle  in  the  want  of  constitutional  power. 
This  difficulty  seems  to  have  been  felt  at  a later  period ; for  the 
ordinance  of  1784  only  directs  a purchase  of  the  land,  and  is 
silent  upon  the  subject  of  municipal  jurisdiction.  It  is  fortunate, 
too,  on  all  accounts,  that  the  design  was  never  executed,  if  it  was 
seriously  entertained.  The  presence  of  Congress  in  the  city  of 
Isew  York,  where  the  legislature  of  the  state  was  also  sitting,  in 
the  winter'of  1787,  enabled  Hamilton  to  carry  those  measures  in 
both  bodies  which  led  immediately  to  the  summoning  of  the 
national  Convention.  And  it  was  especially  fortunate  that  this 
whole  subject  came  before  the  Convention  unembarrassed  with  a 
previous  choice  of  place  by  the  old  Congress,  or  with  any  steps 
concerning  municipal  jurisdiction  which  they  might  have  taken, 
or  omitted. 

For  it  was  no  easy  matter,  in  the  temper  of  the  public  mind 
existing  from  1783  to  1788,  to  determine  where  the  seat  of  the  con- 
federatkl.  or  that  of  the  national,  government  ought  to  be  placed. 
The  Convention  found  this  an  unsettled  question,  and  they  wisely 
determined  to  leave  it  so.  The  cities  of  New  York  and  Pliik- 


SEAT  OF  GOVERNMENT. 


491 

(lelpliiii  had  wishes  and  expectations,  and  it  was  quite  expedient 
that  the  Constitution  should  neither  decide  between  them  nor 
decide  against  both  of  them.  It  Avas  equally  important  that  it 
should  not  direct  Avhether  the  seat  of  the  national  government 
should  be  placed  at  any  of  the  other  commercial  cities,  or  at  the 
capital,  or  within  the  jurisdiction  of  any  state,  or  in  a district  to 
be  exclusively  under  the  jurisdiction  of  the  United  States.  These 
Avere  grave  questions,  Avhicli  iiiA^olved  the  general  interests  of  the 
I nion;  but,  hoAA^ever  settled,  they  Avould  cost  the  Constitution,  in 
some  quarter  or  other,  a great  deal  of  the  support  that  it  required, 
if  determined  before  it  Avent  into  operation.'  Temporarily,  hoAv- 
ever,  the  neAV  gOA^ernment  must  be  placed  someAA^here  Avithin  the 
limits  of  a state,  and  at  one  of  the  principal  cities ; and  as  the 
Congress  then  sitting  at  IS^eAv  York  Avould  probably  in  Ante  their 
successors  to  assemble  there,  it  became  necessary  to  proAude  for  a 
future  removal,  AA’hen  the  time  should  arriA^e  for  a general  agree- 
ment on  the  A^arious  and  delicate  questions  involved.  The  differ- 
ence of  structure,  hoAAmAmr,  betAveen  the  tAAm  branches  of  the 
proposed  Congress,  and  the  difference  of  interests  that  might 
predominate  in  each,  made  a disagreement  on  these  questions 
probable,  if  not  ineAutable ; and  a disagreement  on  the  place  of 
their  future  sessions,  if  accompanied  by  power  to  sit  in  separate 
places,  Avould  be  fatal  to  the  peace  of  the  Union  and  the  opera- 
tion of  the  gOA^ernment. 

The  committee  of  detail,  therefore,  inserted  in  their  draft  a 
clause  prohibiting  either  house,  AAuthout  the  consent  of  the  other, 
from  adjourning  for  more  than  three  days,  or  to  any  other  place 
than  that  at  which  the  Congress  might  be  sitting.  Mr.  King  ex- 
pressed an  apprehension  that  this  implied  an  authority  in  both 
houses  to  adjourn  to  any  place ; and,  as  a frequent  change  of  place 
had  dishonored  the  federal  government,  he  thought  that  a law, 
at  least,  should  be  made  necessary  for  a remoAml.  Mr.  Madison 
considered  a central  position  Avould  be  so  necessary,  and  that  it 
AA  ould  be  so  strongly  demanded  by  the  House  of  KepresentatiA^es, 
that  a remoA^al  from  the  place  of  their  first  session  AA^ould  be  ex- 
torted, eA^en  if  a Iuaa"  were  required  for  it.  But  there  Avas  a fear 
that,  if  the  government  were  once  established  at  the  city  of  Kcav 


^ See  the  conversation  reported  by  Madison,  Elliot,  V.  374, 


492 


CONSTITUTIONAL  HISTORY. 


York,  it  would  never  be  removed  if  a law  were  made  necessary. 
The  provision  reported  by  the  committee  was,  therefore,  retained, 
and  it  was  left  in  the  power  of  the  two  houses  alone,  during  a 
session  of  Congress,  to  adjourn  to  any  place,  or  to  any  time,  on 
which  they  might  agree.' 

Still  it  was  needful  that  the  Constitution  should  empower  the 
legislature  to  establish  a seat  of  government  out  of  the  jurisdic- 
tion of  any  of  the  states,  and  away  from  any  of  their  cities.  The 
time  might  come  when  this  question  could  be  satisfactorily  met. 
The  time  would  certainly  come  when  the  people  of  the  whole 
Union  could  see  that  the  dignity,  the  independence,  and  the  pu- 
rity of  the  government  would  require  that  it  should  be  under  no 
local  influences;  when  every  citizen  of  the  United  States,  called 
to  take  part  in  the  functions  of  that  government,  ought  to  be  able 
to  feel  that  he  and  his  would  owe  their  protection  to  no  power 
save  that  of  the  Union  itself.  Some  disadvantage,  doubtless, 
might  be  experienced  in  placing  the  government  away  from  the 
great  centres  of  commerce.  But  neither  of  the  principal  seats  of 
wealth  and  refinement  was  very  near  to  the  centre  of  the  Union; 
and  if  either  of  them  had  been,  the  necessity  for  an  exclusive  local 
jurisdiction  would  probably  be  found,  after  the  adoption  of  the 
Constitution,  to  outweigh  all  other  considerations.  Accordingly, 
when  the  Constitution  was  revised  for  the  purpose  of  supplying 
the  needful  provisions  omitted  in  its  preparation,  it  was  deter- 
mined that  no  peremptory  direction  on  the  subject  of  a seat  of 
government  should  be  given  to  the  legislature ; but  that  power 
should  be  conferred  on  Congress  to  exercise  an  exclusive  legisla- 
tion, in  all  cases,  over  such  district,  not  exceeding  ten  miles  square, 
as  might,  by  cession  of  particular  states  and  the  acceptance  of 
Congress,  become  the  seat  of  government  of  the  United  States. 
This  provision  has  made  the  Congress  of  the  United  States  the 
exclusive  ruler  of  the  District  of  Columbia,  which  it  governs 
in  its  capacity  of  the  legislature  of  the  Union.  It  enabled  Wash- 
ington to  found  the  city  which  bears  his  name ; towards  which, 
whatever  may  be  the  claims  of  local  attachment,  every  American 
who  can  discern  the  connection  between  the  honor,  the  renown, 


’ Elliot,  V.  409,  410.  See  post,  as  to  the  power  of  the  president  to  assemble 
and  adjourn  Congress. 


TIME  OF  MEETING  OF  CONGKESS. 


493 


and  the  welfare  of  his  country,  and  the  dignity,  convenience,  and 
safety  of  its  government,  must  turn  with  affection  and  pride. 

AVith  respect  to  a regular  time  of  meeting,  no  instructions  had 
been  given  to  the  committee  of  detail ; but  they  inserted  in  their 
draft  of  the  Constitution  a clause  which  required  the  legislature 
to  assemble  on  the  first  Monday  of  December  in  every  year. 
There  was,  however,  a great  difference  of  opinion  as  to  the  expe- 
diency of  designating  any  time  in  the  Constitution,  and  as  to  the 
particular  period  adopted  in  the  report.  But,  as  it  was  generally 
agreed  that  the  Congress  ought  to  assemble  annually,  the  provision 
which  now  stands  in  the  Constitution,  which  requires  annual  ses- 
sions and  establishes  the  first  Monday  in  December  as  the  time  of 
their  commencement,  unless  a different  day  shall  be  appointed  by 
law,  was  adopted  as  a compromise  of  different  views.' 


^ Mr.  Justice  Story  has  stated  in  his  Commentaries  (§  829)  that  this  clause 
came  into  the  Constitution  in  the  revised  draft,  near  the  close  of  the  Convention, 
and  was  silently  adopted,  without  opposition.  This  is  a mistake.  The  clause 
was  contained  in  the  draft  of  the  committee  of  detail,  and  was  modified,  as  stated 
in  the  text,  on  the  7th  of  August,  after  a full  debate.  Elliot,  V.  377,  383-385. 


CHAPTER  XXVI.  _ 

Report  of  the  Committee  of  Detail,  continued.  — The  Powers 
OF  Congress. — The  Gtrand  Compromises  of  the  Constitution 
respecting  Commerce,  Exports,  and  the  Slave-Trade. 

In  the  examination  which  has  thus  far  been  made  of  the  proc- 
ess of  forming  the  Constitution,  the  reader  will  have  noticed  the 
absence  of  any  express  provisions  concerning  the  regulation  of 
commerce  and  the  obtaining  of  revenues.  A system  of  govern- 
ment had  been  framed,  embracing  a national  legislature,  in  which 
the  mode  of  representation  alone  had  been  determined  with  preci- 
sion. The  powers  of  this  legislature  had  been  described  only  in 
very  general  terms.  It  was  to  have  “ the  legislative  rights  vested 
in  Congress  by  the  Confederation,”  and  the  power  “ to  legislate 
in  all  cases  for  the  general  interests  of  the  Union,  and  also  in  those 
to  which  the  states  were  separately  incompetent,  or  in  which  the 
harmony  of  the  United  States  may  be  interrupted  by  the  exercise 
of  individual  legislation.” 

It  might  undoubtedly  have  been  considered  that,  as  the  want 
of  a power  in  the  Confederation  to  make  uniform  commercial  reg- 
ulations affecting  the  foreign  and  domestic  relations  of  the  states 
was  one  of  the  principal  causes  of  the  assembling  of  this  Conv  en- 
tion, such  a power  was  implied  in  the  terms  of  the  resolution, 
which  had  declared  the  general  principles  on  which  the  authority 
of  the  national  legislature  ought  to  be  regulated.  Still,  it  re- 
mained to  be  determined  what  kind  of  regulation  of  commerce 
was  required  by  “the  general  interests  of  the  Union,”  or  how  far 
the  states  were  incompetent,  by  their  separate  legislation,  to  deal 
with  the  interests  of  commerce  so  as  to  promote  “ the  harmony 
of  the  United  States.”  In  the  same  way  a power  to  obtain  rev- 
enues might  be  implied  on  the  same  general  principles.  But 
whether  the  commercial  power  foreshadowed  in  these  broad  dec- 
larations was  to  be  limited  or  unlimited ; whether  there  were  any 


EXPOK  T S. 


495 


special  objects  or  interests  to  which  it  was  not  to  extend ; and 
whether  the  revenues  of  the  government  were  to  be  derived  from 
imposts  laid  at  ])leasure  upon  imports  or  exports,  or  both  ; wheth- 
er they  might  be  derived  from  excises  on  the  manufactures  or 
l)roduce  of  the  country ; whether  its  power  of  direct  taxation  was 
to  be  exercised  under  further  limitations  than  those  alreadv  a^eed 

» t/  O 

upon  for  the  apportionment  of  direct  taxes  among  the  states — all 
these  details  were  as  yet  entirely  unsettled. 

Two  subjects,  one  of  which  might  fall  within  a general  com- 
mercial power,  and  the  other  within  a general  power  to  raise  rev- 
enues, had  already  been  incidentally  alluded  to,  and  both  were 
likely  to  create  great  embarrassment.  General  Pinckney  had 
twice  given  notice  that  South  Carolina  could  not  accede  to  the 
new  Union  proposed  if  it  possessed  a power  to  tax  exports.'  It 
had  also  become  apparent,  in  the  discussions  and  arrangements  re- 
specting the  apportionment  of  representatives,  that  the  possible 
encouragement  of  the  slave-trade,  which  might  follow  an  admis- 
sion of  the  blacks  into  the  rule  of  representation,  was  one  great 
obstacle,  in  the  view  of  the  Northern  States,  to  such  an  admission ; 
and  at  the  same  time  that  it  was  very  doubtful  whether  all  the 
Southern  States  would  surrender  to  the  general  government  the 
power  to  prohibit  that  trade.''  The  compromise  which  had  al- 
ready taken  place  on  the  subject  of  representation  had  settled  the 
principles  on  which  that  difficult  matter  was  to  be  arranged.  But 
the  power  to  increase  the  slave  populations  by  continued  importa- 
tion had  not  been  agreed  to  be  surrendered  ; and  unless  some  satis- 
factory and  reasonable  adjustment  could  be  made  on  this  subject, 
there  could  be  no  probability  that  the  Constitution  would  be  finally 
ratified  by  the  people  of  the  Northern  States.^  It  is  necessary, 
therefore,  to  look  carefully  at  these  two  subjects,  namely,  the  taxa- 
tion of  exports  and  the  prohibition  of  the  slave-trade. 


’ See  Madison,  Elliot,  V.  302,  357. 

^ See  tile  remarks  of  Gouverneur  Morris  in  the  debate  on  the  apportionment  of 
representatives,  in  which  he  stated  the  dilemma  precisely  in  this  way.  El  Hot,  V.  301. 

® No  candid  man,  said  Rufus  King,  could  undertake  to  justify  to  them  a sys- 
tem under  which  slaves  were  to  continue  to  be  imported,  and  to  be  represented, 
while  the  exports  produced  by  their  labor  were  not  to  pay  any  part  of  the  ex- 
penses of  the  government  which  M’ould  be  obliged  to  defend  their  masters 
against  domestic  insurrections  or  foreign  attacks.  Elliot,  V.  391. 


49G 


CONSTITUTIONAL  HISTORY. 


That  a power  to  lay  taxes  or  duties  on  exported  products  be- 
longs to  every  government  possessing  a general  authority  to  select 
the  objects  from  which  its  revenues  are  to  be  derived,  is  a proposi- 
tion which  admits  of  little  doubt.  It  is  not  to  be  doubted,  either, 
that  it  is  a power  which  may  be  attended  with  great  benefit,  not 
only  for  purposes  of  revenue,  but  for  the  encouragement  of  manu- 
factures ; and  it  is  clear  that  it  may  often  be  used  as  a means  oi 
controlling  the  commercial  policy  of  other  countries,  when  applied 
to  articles  which  they  cannot  produce,  but  which  they  must  con- 
sume. A government  that  is  destitute  of  this  power  is  not  armed 
with  the  most  complete  and  effectual  means  for  counteracting  the 
regulations  of  foreign  countries  that  bear  heavily  upon  the  indus- 
trial pursuits  of  its  people,  although  it  may  have  other  and  suffi- 
cient sources  of  revenue  ; and  therefore,  until  an  unrestricted  com- 
mercial intercourse  and  a free  exchange  of  commodities  become 
the  general  policy  of  the  world,  to  deny  to  any  government  a 
power  over  the  exported  products  of  its  own  country  is  to  place 
it  at  some  disadvantage  with  all  commercial  nations  that  possess 
the  power  to  enhance  the  price  of  commodities  which  they  them- 
selves produce. 

But,  on  the  other  hand,  the  practice  of  taxing  the  products  of 
a country,  as  they  pass  out  of  its  limits  to  enter  into  the  consump- 
tion of  other  nations,  can  be  beneficially  exercised  only  by  a gov- 
ernment that  can  select  and  arrange  the  objects  of  such  taxation 
so  as  to  do  nearly  equal  justice  to  all  its  producing  interests.  If, 
for  example,  the  article  of  wine  w^ere  produced  only  by  a single 
province  of  France,  and  all  the  other  provinces  produced  no  com- 
modities sought  for  by  other  nations,  an  export  duty  upon  wine 
would  fall  wholly  upon  the  single  province  where  it  was  produced, 
and  would  place  its  production  at  an  unequal  competition  with  the 
wines  of  other  countries.  But  France  produces  a variety  of  wines, 
the  growth  of  many  different  provinces  ; and  therefore,  in  the  ad- 
justment of  an  export  duty  upon  wines,  the  government  of  that 
country,  after  a due  regard  to  the  demand  for  each  kind  or  class 
of  this  commodity,  has  chiefly  to  consider  the  effect  of  such  a tax 
in  the  competition  with  the  same  commodity  produced  by  other 
nations. 

At  the  time  of  the  formation  of  the  Constitution  of  the 
United  States,  there  was  not  a single  production  common  to  all 


DUTY  ON  EXPORTS. 


497 


the  states  of  sufficient  importance  to  become  an  article  of  general 
exportation.  Indeed,  there  were  no  commodities  produced  for 
exportation  so  many  of  the  states  that  a tax  or  duty  imposed 
upon  them  on  leaving  the  country  would  operate  with  anything 
like  equality  even  in  different  sections  of  the  Union.  In  fact, 
from  the  extreme  northern  to  the  extreme  southern  boundary  of 
the  Union,  the  exports  were  so  various,  both  in  kind  and  amount, 
that  a tax  imposed  on  an  article  the  produce  of  the  South  could 
not  be  balanced  by  a tax  imposed  upon  an  article  produced  or 
manufactured  at  the  Xorth.  How,  for  example,  could  the  burden 
of  an  export  duty  on  the  tobacco  of  Virginia,  or  the  rice  or  indigo 
of  South  Carolina,  be  equalized  by  a similar  duty  on  the  lumber 
or  fish  or  flour  of  other  states  ? Possibly,  after  long  experience 
and  the  accumulation  of  the  necessary  statistics,  an  approach  tow- 
ards an  equality  of  such  burdens  might  have  been  made ; but  it 
could  never  have  become  more  than  an  unsatisfactory  approxima- 
tion ; and  while  the  effect  of  such  a tax  at  one  end  of  the  Union 
on  the  demand  for  the  commodity  subjected  to  it  might  be  esti- 
mated— because  the  opportunity  for  other  nations  to  supply  them- 
selves elsewhere  might  be  so  precise  as  to  be  easily  measured — its 
effect  at  the  other  end  of  the  Union,  on  another  commodity,  might 
be  whollv  uncertain,  because  the  demand  from  abroad  miofht 
be  influenced  by  new  sources  of  supply,  or  might  from  accidental 
causes  continue  to  be  nearly  the  same  as  before. 

However  theoretically  correct  it  might  have  been,  therefore, 
to  confer  on  the  general  government  the  same  authority  to  tax 
exports  as  to  impose  duties  on  imported  commodities — and  the 
argument  for  it  drawn  from  the  necessities  for  revenue  and  pro- 
tection of  manufactures  was  exceedingly  strong — the  actual  situa- 
tion of  the  country  made  it  quite  impracticable  to  obtain  the  con- 
sent of  some  of  the  states  to  a full  and  complete  revenue  power. 
Several  of  the  most  important  persons  in  the  Convention  were 
strongly  in  favor  of  it.  Washington,  Madison,  Wilson,  Gou- 
verneur  Morris,  and  Dickinson  are  known  to  have  held  the  ojDin- 
ion  that  the  government  would  be  incomplete  without  a power 
to  tax  exports  as  well  as  imports.  But  the  decided  stand  taken 
i)y  South  Carolina,  whose  exports  for  a single  year  were  said  by 
General  Pinckney  to  have  amounted  to  £600,000,  the  fruit  of  the 
labor  of  h^  slaves^  probably  led  the  committee  of  detail  to  insert 
L— 32  ' 


498 


CONSTITUTIONAL  HISTORY. 


in  their  report  of  a draft  of  the  Constitution  a distinct  prohibi- 
tion against  laying  any  tax  or  duty  on  articles  exported  from 
any  state. 

"a  similar  question,  in  relation  to  the  extent  of  the  commercial 
power,  was  destined  to  arise  out  of  the  relations  of  the  different 
states  to  the  slave-trade.  If  the  power  to  regulate  commerce, 
that  might  be  conferred  upon  the  general  government,  was  to  be 
universal  and  unlimited,  it  must  include  the  right  to  prohibit  the 
importation  of  slaves.  If  the  right  to  sanction  or  tolerate  the 
importation  of  slaves,  which,  like  all  other  political  rights,  be- 
longed to  the  people  of  the  several  states  as  sovereign  communi- 
ties, was  to  be  retained  by  them  as  an  exception  from  the  com- 
mercial power  which  they  might  confer  upon  the  national  legis- 
lature, that  exception  must  be  clearly  and  definitely  established. 
For  several  reasons  the  question* was  necessarily  to  be  met  as 
soon  as  the  character  and  extent  of  the  commercial  power  should 
come  into  discussion.  While  the  trade  had  been  prohibited  by  all 
the  other  states,  including  Virginia  and  Maryland,  it  had  only 
been  subjected  to  a duty  by  Korth  Carolina,  and  was  subjected  to 
a similar  discouragement  by  South  Carolina  and  Georgia.  The 
basis  of  representation  in  the  national  legislature,  in  which  it  had 
been  agreed  that  the  slaves  should  be  included  in  a certain  ratio, 
created  a strong  political  motive  with  the  Northern  States  to  ob- 
tain for  the  general  government  a power  to  prevent  further  im- 
portations. It  was  fortunate  that  this  motive  existed ; for  the 
honor  and  reputation  of  the  country  were  concerned  to  put  an  end 
to  this  traffic.  No  other  nation,  it  w^as  true,  had  at  that  time 
abolished  it ; but  here  were  the  assembled  states  of  America,  en- 
gaged in  framing  a constitution  of  government  that  ought,  if  the 
American  character  was  to  be  consistent  with  the  principles  of  the 
American  Eevolution,  to  go  as  far  in  the  recognition  of  human 
rights  as  the  circumstances  of  their  actual  situation  would  admit. 
What  was  practicable  to  be  done,  from  considerations  of  humanity, 
and  all  that  could  be  successfully  done,  wms  the  measure  of  their 
duty  as  statesmen,  admitted  and  acted  upon  by  the  framers  of 
the  Constitution,  including  many  of  those  who  represented  slave- 
holding  constituencies,  as  well  as  the  representatives  of  states  that 
had  either  abolished  both  the  traffic  in  slaves  and  the  institution 
itself,  or  were  obviously  destined  to  do  it. 


CONTROL  OF  THE  SLAVE-TRADE. 


499 


This  just  and  necessary  rule  of  action,  however,  which  limited 
their  efforts  to  what  tlie  actual  circumstances  of  the  country 
would  permit,  made  a clear  distinction  between  a prohibition  of 
the  future  importation  of  slaves  and  the  manumission  of  those  al- 
ready in  the  country.  The  former  could  be  accomplished,  if  the 
consent  of  the  people  of  the  states  could  be  obtained,  without 
trenching  on  their  sovereign  control  over  the  condition  of  all 
persons  within  their  respective  limits.  It  involved  only  the  sur- 
render of  a right  to  add  to  the  numbers  of  their  slaves  by  con- 
tinued importations.  But  the  power  to  determine  whether  the 
slaves  then  within  their  limits  should  remain  in  that  condition 
could  not  be  surrendered  by  the  people  of  the  states  without 
overturning  every  principle  on  which  the  system  of  the  new 
government  had  been  rested,  and  w^hich  had  thus  far  been  justly 
regarded  as  essential  to  its  establishment  and  to  its  future  success- 
ful operation. 

It  is  not,  therefore,  to  be  inferred,  because  a large  majority  of 
the  Convention  sought  for  a power  to  prohibit  the  increase  of 
slaves  by  further  importation,  that  they  intended  by  means  of 
it  to  extinguish  the  institution  of  slavery  within  the  states.  So 
far  as  they  acted  from  a political  motive,  they  designed  to  tale 
away  the  power  of  a state  to  increase  its  congressional  representa- 
tion by  bringing  slaves  from  Africa ; and,  so  far  as  they  acted 
fronj^jn^iv^  of  general  justice  and  humanity,  they  designed  to 
terminate  a traffic  which  never  has  been  and  never  can  be  carried 
on  without  infinite  cruelty  and  national  dishonor.  That  the  indi- 
viduals of  an  inferior  race,  already  placed  in  the  condition  of  servi- 
tude to  a superior  one,  may,  by  the  force  of  necessity,  be  rightfully 
left  in  the  care  and  dominion  of  those  on  whom  they  have  been 
cast,  is  a proposition  of  morals  entirely  fit  to  be  admitted  by  a 
Christian  statesman.  That  new  individuals  may  rightfully  be 
placed  in  the  same  condition,  not  by  the  act  of  Providence  through 
the  natural  increase  of  the  species,  but  by  the  act  of  man  in  trans- 
ferring them  from  distant  lands,  is  quite  another  proposition. 
The  distinction  between  the  two,  so  far  as  a moral  judgment  is  con- 
cerned with  the  acts  of  the  framers  of  the  Constitution  upon  the 
circumstances  before  them,  defines  the  limits  of  duty  which  they 
intended  to  recognize. 

No  satisfactory  means  exist  for  determining  to  what  extent  a 


500 


CONSTITUTIONAL  HISTORY. 


continuance  of  the  importation  of  slaves  was  necessary,  in  an  eco- 
nomical point  of  view,  to  the  states  of  IS'orth  Carolina,  South  Car- 
olina, and  Georgia.  There  is  some  reason  to  suppose  that  the  nat- 
ural increase  of  the  slave  population  in  T^irginia  at  that  period 
more  than  supplied  her  wants ; and  perhaps  the  less  healthy  re- 
gions of  the  more  southern  states  may  have  still  required  foreign 
supplies  in  order  to  keep  the  lands  already  occupied  under  culti- 
vation, or  to  make  new  lands  productive.^  All  that  is  historically 
certain  on  this  subject  is,  that  the  representatives  of  the  three 
most  southerly  states  acted  upon  the  belief  that  their  constitu- 
ents would  not  surrender  the  right  to  continue  the  importation  of 
slaves,  although  they  might,  if  left  to  themselves,  discontinue  the 
practice  at  some  future  time. 

These  declarations,  however,  had  not  been  made  at  the  time 
when  the  principles  on  which  the  Constitution  was  to  be  framed 
were  sent  to  the  committee  of  detail,  frothing  had  yet  occurred 
ill  the  Convention  to  make  it  certain  that  the  power  to  import 
would  be  retained  by  any  of  the  states.  The  committee  of  detail 
had,  therefore,  so  far  as  the  action  of  the  Convention  had  gone, 
an  unrestricted  choice  between  a full  and  a limited  commercial 
poAver.  They  consisted  of  three  members  from  non-slaveholding 
and  two  from  slaveholding  states but  as  one  of  them,  Mr.  Kut- 
ledge  of  South  Carolina,  was  one  of  the  persons  who  subsequently 
announced  to  the  Convention  the  position  that  would  be  taken  by 
his  OAvn  state  and  by  North  Carolina  and  Georgia,  there  can  be 
no  doubt  that  he  announced  the  same  determination  in  the  com- 
mittee. In  their  report  they  shaped  the  commercial  pmver  accord- 


’ See  the  remarks  of  Mr.  Ellsworth  and  General  Pinckney,  as  reported  by 
Mr.  IMadison,  Elliot,  V.  458,  459. 

2 They  were  Messrs.  Rutledge,  Randolph,  Gorham,  Ellsworth,  and  Wilson.  I 
have  classed  Mr.  Ellsworth  among  the  representatives  of  non-slaveholding  states; 
for  although  there  were  between  two  and  three  thousand  slaves  in  Connecticut 
at  this  time,  provision  had  already  been  made  for  its  prospective  and  gradual 
abolition.  It  was  not  finally  extinct  in  that  state  until  after  the  year  1840.  The 
United  States  census  for  1790  returned  2759  slaves  for  Connecticut ; the  census 
for  1840  returned  17  ; in  the  census  for  1850  none  were  returned.  A like  gradual 
abolition  took  place  in  New  Hampshire,  Rhode  Island,  Vermont,  New  York,  ami 
Pennsylvania.  In  Massachusetts  slavery  was  abolished  by  the  State  Constitu- 
tion of  1780. 


REGULATION  OF  COMMERCE. 


501 


ingly.  They  jn’ovided  that  the  legislature  of  the  United  States 
should  have  power  to  lay  and  collect  taxes,  duties,  imposts,  and 
excises,  and  to  regulate  commerce  with  foreign  nations  and  among 
the  several  states. 

But  they  also  reported  several  restrictions  upon  both  the  reve- 
nue and  commercial  powers.  Besides  providing,  in  accordance 
with  the  ninth  resolution  adopted  by  the  Convention,  that  direct 
taxation  should  be  proportioned  among  the  states  according  to  the 
census,  to  be  taken  by  a particular  rule,  they  added  the  further 
restrictions,  that  no  tax  or  duty  should  be  laid  by  the  national 
legislature  on  articles  exported  from  any  state,  nor  on  the  migra- 
tion or  importation  of  such  persons  as  the  several  states  might 
think  proper  to  admit ; that  such  migration  or  importation  should 
not  be  prohibited  ^ that  no  capitation  tax  should  be  laid,  unless  in 
proportion  to  the  census  ; and  that  no  navigation  act  should  be 
passed  without  the  assent  of  two  thirds  of  the  members  present  in 
each  house. 

That  the  new  government  must  have  a direct  revenue  power 
was  generally  conceded,  and  it  was  also  generally  admitted  that 
it  must  have  a power  to  regulate  commerce  with  foreign  coun- 
tries. But  the  idea  was  more  or  less  prevalent  among  the  South- 
ern statesmen  that  the  interest  of  their  own  states,  considered  as 
a distinct  and  separate  interest  from  that  of  the  commercial  states, 
did  not  require  a regulation  of  commerce  by  the  general  govern- 
ment. It  is  not  eas}^  to  determine  to  what  extent  these  views 
were  correct.  Taking  into  consideration  nothing  more  than  the 
fact  that  the  staple  production  of  Yirginia  was  tobacco,  as  it  was 
also  partly  that  of  Yorth  Carolina ; that  rice  and  indigo  were  the 
great  products  of  South  Carolina  and  Georgia ; and  that  neither 
of  these  four  states  possessed  a large  amount  of  shipping— it  might 
certainly  be  considered  that  an  unrestricted  foreign  intercourse  was 
important  to  them. 

^ But,  on  the  other  hand,  if  those  states,  by  clothing  the  Union 
with  a power  to  regulate  commerce,  were  likely  to  subject  them- 
selves to  a temporary  rise  of  freights,  the  measures  which  might 
have  that  effect  would  also  tend  directly  to  increase  Southern  as 
well  as  Northern  shipping,  to  augment  the  commercial  marine 
of  the  whole  country,  and  thus  to  increase  its  general  maritime 
strength.  The  general  security  thus  promoted  was  as  important 


502 


CONSTITUTIONAL  HISTORY. 


to  one  class  of  states  as  to  another.  The  increase  of  the  coasting 
trade  would  also  increase  the  consumption  of  the  produce  of  all 
the  states.  The  great  benefit,  however,  to  be  derived  from  a 
national  regulation  of  commerce — a benefit  in  which  all  the  states 
would  equally  share,  whatever  might  be  their  productions— was 
undoubtedly  the  removal  of  the  existing  and  injurious  retaliations 
which  the  states  had  hitherto  practised  against  each  other.' 

Still,  these  advantages  were  indirect  or  incidental.  The  im- 
mediate and  palpable  commercial  interests  of  different  portions  of 
the  Union,  regarded  in  the  mass,  were  not  identical;  and  it  was 
in  one  sense  true  that  the  power  of  regulating  commerce  was  a 
concession  on  the  part  of  the  Southern  States  to  the  I^orthern, 
for  which  they  might  reasonably  expect  equivalent  advantages, 
or  which  they  might  reasonably  desire  to  qualify  by  some  restric- 
tion. 

On  the  reception  of  the  report  of  the  committee  of  detail,  and 
when  the  article  relating  to  representation  was  reached,  the  con- 
sequences of  agreeing  that  the  slaves  should  be  computed  in  the 
rule,  taken  in  connection  with  an  unrestrained  power  in  the  states 
to  increase  the  slave  populations  by  further  importation,  and  with 
the  exemption  of  exports  from  taxation,  became  more  prominent, 
and  more  likely  to  produce  serious  dissatisfaction.  The  concession 
of  the  slave  representation  had  been  made  by  some  of  the  Northern 
members,  in  the  hope  that  it  might  be  the  means  of  strengthening 
the  plan  of  government,  and  of  procuring  for  it  full  powers  both 
of  revenue  and  of  commercial  regulation.  But  now  it  appeared 
that,  as  to  two  very  important  points,  the  hands  of  the  national 
legislature  were  to  be  absolutely  tied.  Tjm  importation  of  slaves 
could  not  be  prohibited ; exports  could  not  be  taxed.  These  re- 
strictions seemed  to  many  to  have  an  inevitable  tendency  to  de- 
feat the  great  primary  purposes  of  a national  government.  All 
must  agree,  that  defence  against  foreign  invasion  and  against  in- 
ternal sedition  was  one  of  the  principal  objects  for  which  such  a 
government  was  to  be  established.  Were  all  the  states  then  to 
be  bound  to  defend  each,  and  wms  each  to  be  at  liberty  to  intro- 
duce a w^eakness  which  would  increase  both  its  o’wm  and  the  gen- 
eral danger,  and  at  the  same  time  to  withhold  the  compensation 


See  the  remarks  of  Mr.  Madison,  Elliot,  V.  490. 


TAX  ON  EXPORTS. 


503 


for  the  burden?  If  slaves  were  to  be  iin])orte(l,  wljy  should  not 
the  exports  produced  by  their  labor  su})})ly  a revenue  that  would 
enable  the  general  government  to  defend  their  masters  ? To  re- 
fuse it  was  so  inequitable  and  unreasonable,  said  Itufus  King,  that 
he  could  not  assent  co  the  representation  of  the  slaves,  unless  ex- 
])orts  should  be  taxable ; perhaps  he  could  not  finally  consent  to 
it,  under  any  circumstances/ 

Gouverneur  Morris,  with  his  accustomed  ardor,  went  further 
still,  and  insisted  on  reopening  the  subject  of  representation,  now 
that  the  other  features  of  the  system  were  to  be  made  to  favor 
the  increase  of  slaves,  and  to  throw  the  burdens  of  maintaining 
the  government  chiefly  upon  the  Northern  States.  It  was  idle, 
he  declared,  to  say  that  direct  taxation  might  be  levied  upon  the 
slave-holding  states  in  proportion  to  their  representative  popula- 
tion ; for  the  general  government  could  never  stretch  out  its  hand 
and  put  it  directly  into  the  pockets  of  the  people  over  so  vast  a 
country.  Its  revenues  must  be  derived  from  exports,  imports,  and 
excises.  He  therefore  would  not  consent  to  the  sacrifices  de- 

manded, and  moved  the  insertion  of  the  word  “free”  before  the 
word  “ inhabitants,”  in  the  article  regulating  the  basis  of  represen- 
tation." 

But  there  were  few  men  in  the  Convention  bold  enough  to 
hazard  the  consequences  of  unsettling  an  arrangement  which  had 
cost  so  much  labor  and  anxiety ; which  had  been  made  as  nearly 
correct  in  theory  as  the  circumstances  of  the  case  would  allow  ; 
and  which  was,  in  truth,  the  best  practical  solution  of  a great  diffi- 
culty. Mr.  Morris’s  motion  received  the  vote  of  a single  state 
only.^  The  great  majority  of  the  delegations  considered  it  wiser 
to  go  on  to  the  discussion  of  the  proposed  restrictions  upon  the 
revenue  and  commercial  powers,  in  the  hope  that  each  of  them 
might  be  considered  and  acted  upon  with  reference  to  the  true 
principles  applicable  to  the  subject,  or  that  the  whole  might  be 
adjusted  by  some  agreement  that  would  not  disturb  what  had 
been  settled  with  so  much  difficulty. 

The  great  embarrassment  attending  the  proposed  restriction 
upon  the  taxation  of  exports  was,  that,  however  the  question  might 
be  decided,  it  would  probably  lose  for  the  new  government  the 


Madison,  Elliot,  V.  391,  392. 


2 Ibid.,  392,  393. 


^ New  Jersey. 


CONSTITUTIONAL  HISTORY. 


504 

support  of  some  important  members  of  the  Convention.  Those 
who  regarded  it  as  right  that  the  government  should  have  a com- 
plete revenue  power  contended  for  the  convenience  with  which  a 
large  staple  production,  in  which  America  was  not  rivalled  in  for- 
eign markets,  could  be  made  the  subject  of  an  export  tax  that 
would  in  reality  be  paid  by  the  foreign  consumer.  On  the  other 
side,  the  very  facility  with  which  such  objects  could  be  selected 
for  taxation  alarmed  the  states  whose  products  presented  the  best 
opportunity  for  exercising  this  power.  They  did  not  deny  the 
obvious  truth  that  the  tax  must  ultimately  fall  on  the  consumer; 
but  they  considered  it  enough  to  surrender  the  power  of  levying 
duties  upon  imports,  without  giving  up  the  control  which  each 
state  now  had  over  its  own  productions.' 

But  there  was  also  another  question  involved  in  the  form  in 
which  the  proposed  restriction  had  been  presented.  It  prohibited 
the  national  government  from  taxing  exports,  but  imposed  no  re- 
straint in  this  respect  upon  the  power  of  the  states.  If  they  were 
to  retain  the  power  over  their  own  exports,  they  would  have  the 
same  right  to  tax  the  products  of  other  states  exported  through 
their  maritime  towns.  This  power  had  been  used  to  a great  ex- 
tent, and  always  oppressively.  Virginia  had  taxed  the  tobacco 
of  North  Carolina  ; PennsyAania  had  taxed  the  products  of  Mary- 
land, of  New  Jersey,  and  of  Delaware ; and  it  wms  apparent  that 
every  state,  not  possessed  of  conv^enient  and  accessible  seaports, 
must  hereafter  submit  to  the  same  exactions,  if  this  power  were 
left  unrestrained.  Give  it  to  the  general  government,  said  the  ad- 
vocates for  a full  revenue  power,  and  the  inconveniences  attend- 
ing its  exercise  by  the  separate  states  will  be  avoided.  But  those 
who  Avere  opposed  to  the  possession  of  such  a power  by  the  gen- 
eral government  apprehended  greater  oppression  by  a majority 
of  the  states  acting  through  tlie  national  legislature  than  they 
could  suffer  at  the  hands  of  individual  states.  The  eight  Northern 
States,  they  said,  had  an  interest  different  from  the  five  Southern 
States,  and  in  one  branch  of  the  legislature  the  former  weie  to 
have  thirty -six  votes,  and  the  latter  twenty-nine. 

1 The  opposition  to  a power  to  tax  exports  was  not  confined  to  the  members 
from  North  and  South  Carolina  and  Georgia.  Ellsworth  and  Sherman  ot  Con- 
necticut, Mason  of  Virginia,  and  Gerry  of  I\Iassachnsetts  considered  such  a power 
wrong  in  principle,  and  incapable  of  being  exercised  with  equality  and  justice. 


EXPORTS  NOT  TO  RE  TAXED. 


• 505 


From  considerations  like  these,  united  with  others  which  would 
render  it  nearly  impracticable  to  select  the  objects  of  such  taxa- 
tion so  as  to  make  it  operate  equally,  the  restriction  prevailed.' 
The  revenue  power  was  thus  shorn  of  one  great  branch  of  taxa- 
tion, Avhich,  however  difficult  it  miglit  be  to  practise  it  throughout 
such  a country  as  this,  is  part  of  the  prerogatives  of  every  com- 
l)lete  government,  which  was  believed  by  many  to  be  essential  to 
the  success  of  the  proposed  Constitution,  but  which  was  resisted 
successfully  by  others,  as  oppressive  to  their  local  and  peculiar 
interests. 

A\  as  the  commercial  power  to  experience  a like  diminution 
from  the  full  proportions  of  a just  authority  over  the  external 
trade  of  the  states?  Were  the  states,  whose  great  homogeneous 
])roducts,  derived  from  the  labor  of  slaves,  would  supply  no  revenue 
to  the  national  treasury,  to  be  left  at  liberty  to  import  all  the 
slaves  that  Africa  could  furnish?  Were  the  commercial  states  to 
see  the  carrying  trade  of  the  country  — embracing  the  very  ex- 
ports thus  exempted  from  burdens  of  every  kind,  and  thus  stimu- 
lated by  new  accessions  of  slaves — pass  into  foreign  bottoms,  and 
be  unable  to  protect  their  interests  b}"  a majority  of  votes  in  the 
national  legislature  ? W as  there  to  be  no  advantageous  commer- 
cial treaty  obtained  from  any  foreign  power  unless  the  measures 
needful  to  compel  it  could  gain  the  assent  of  two  thirds  of  Con- 
gress-? Was  the  Aorth  to  be  shut  out  forever  from  the  West  In- 
dia trade,  and  was  it  at  the  same  time  to  see  the  traffic  in  slaves 
prosecuted  without  restraint,  and  without  the  prospect  or  the  hope 
of  a final  termination  ? 

These  were  grave  and  searching  questions.  The  vote  exempt- 
ing exports  from  the  revenue  power  could  not  be  recalled.  It  had 
passed  by  a decided  majority  of  the  states ; and  many  suffrages 


^ The  vote  was  taken  (August  21st)  upon  so  much  of  the  fourth  section  of  the 
seventh  article  of  the  reported  draft  as  affirmed  that  “no  tax  or  duty  shall  be 
laid  by  the  legislature  on  articles  exported  from  any  state.”  Massachusetts,  Con- 
necticut, Maryland,  Virginia  (Washington  and  Mr.  Madison,  no),  North  Carolina, 
South  Carolina,  Georgia,  ay^  7 ; New  Hampshire,  New  Jersey,  Pennsylvania,  Dela- 
ware, no,  4.— If  the  subject  had  been  left  in  this  position,  exports  would  have 
been  taxable  by  the  states.  The  plan  of  restraining  the  power  of  the  states  over 
exports  was  subsequently  adopted,  after  the  compromise  involving  the  revenue 
and  commercial  powers  of  the  general  government  had  been  settled. 


506  CONSTITUTIONAL  HISTORY. 

had  been  given  for  the  exemption,  not  from  motives  of  a sectional 
nature,  but  on  account  of  the  difficulty  that  must  attend  the  exer- 
cise of  the  power,  and  from  the  conviction  that  such  taxation  is 
incorrect  in  principle.  So  far,  therefore,  the  Southern  States  had 
gained  all  that  they  desired  in  respect  to  the  revenue  power,  and 
now  three  of  them,  with  great  firmness,  declared  that  the  question 
in  relation  to  the  commercial  power  was,  whether  they  should  or 
should  not  be  parties  to  the  Union.  If  required  to  surrender  their 
right  to  import  slaves,  IN'orth  Carolina,  South  Carolina,  and  Georgia 
would  not  accept  the  Constitution,  although  they  were  willing  to 
make  slaves  liable  to  an  equal  tax  with  other  imports.^  It  was 
also  manifest  that  the  clause  which  required  a navigation  act  to 
be  passed  by  two  thirds  of  each  house  was  to  be  insisted  on  by 
some,  although  not  by  all,  of  the  Southern  members. 

Thus  was  a dark  and  gloomy  prospect  a second  time  presented 
to  the  framers  of  the  Constitution.  If,  on  the  one  side,  there  were 
states  feeling  themselves  bound  as  a class  to  insist  on  certain  con- 
cessions, on  the  other  side  w^ere  those  by  whom  such  concessions 
could  not  be  made.  The  chief  motive  with  the  Eastern,  and  with 
most  of  the  E’orthern  States,  in  seeking  a new  union  under  a new 
frame  of  government,  was  a commercial  one.  The}^  had  suffered 
so  severely  from  the  effects  of  the  commercial  policy  of  England 
and  other  European  nations,  and  from  the  incapacity  of  Congress 
to  control  that  policy,  that  it  had  become  indispensable  to  them 
to  secure  a national  power  which  could  dictate  the  terms  and 
vehicles  of  commercial  intercourse  with  the  whole  country.  Cut 
off  from  the  British  West  India  trade  by  the  English  Orders  in 
Council,  the  Eastern  and  Middle  States  required  other  means  of 
counteracting  those  oppressive  regulations  than  could  be  found  in 
their  separate  state  legislation,  which  furnished  no  power  what- 
ever for  obtaining  a single  commercial  treaty."  Besides  these  con- 
siderations, which  related  to  the  special  interests  of  the  commer- 
cial states,  the  want  of  a navy,  which  could  only  be  built  up  by 
measures  that  would  encourage  the  growth  of  the  mercantile 
marine,  and  which,  although  needed  for  the  protection  of  com- 
merce, wms  also  required  for  the  defence  of  the  whole  country. 


1 Elliot,  V.  457-461. 

2 See  ante,  on  the  origin  and  necessity  of  the  commercial  power. 


A NAVIGATION  ACT. 


507 

made  it  necessary  that  the  power  to  ])ass  a navigation  act  should 
he  burdened  Avith  no  serious  restrictions. 

The  idea  of  requiring  a vote  of  two  thirds  in  Congress  for  the 
])assage  of  a navigation  act,  founded  on  the  assumed  diversity  of 
IVorthern  and  Southern,  or  the  commercial  and  the  planting  inter- 
ests, proceeded  upon  the  necessity  for  a distinct  protection  of  the 
latter  against  the  former,  by  means  of  a special  legislative  check, 
lo  a certain  extent,  as  I have  already  said,  these  interests,  Avhen 
regarded  in  their  aggregates,  offered  a real  diversity.  But  it  did 
not  follow  that  this  peculiar  check  upon  the  power  of  a majority 
Avas  either  a necessary  or  an  expedient  mode  of  providing  against 
oppressive  legislation.  In  every  system  of  popular  government 
there  are  great  disadvantages  in  departing  from  the  simple  rule  of 
a majority ; and  perhaps  the  principle  Avhich  requires  the  assent 
of  more  than  a majority  ought  never  to  be  extended  to  mere  mat- 
ters of  legislation,  but  should  be  confined  to  treaty  stipulations, 
and  to  those  fundamental  changes  Avhich  affect  the  nature  of  the 
goA^ermnent  and  invoh^e  the  terms  on  Avhich  the  different  portions 
of  society  are  associated  together. 

It  Avas  undoubtedly  the  purpose  of  those  Avho  sought  for  this 
particular  restriction  to  qualify  the  nature  of  the  government  in 
its  relation  to  the  interests  of  commerce.  But  the  real  question 
was,  Avhether  there  existed  any  necessary  reason  for  placing  those 
interests  upon  a different  footing  from  that  of  all  other  subjects 
of  national  legislation.  The  operation  of  the  old  rule  of  the  Con- 
federation, Avhich  required  the  assent  of  nine  states  in  Congress 
to  almost  all  the  important  measures  of  government,  many  of 
AA  hich  involA^ed  no  fundamental  right  of  separate  states,  had  re- 
A ealed  the  incouA^'eniences  of  lodging  in  the  hands  of  a minority 
the  poAver  to  obstruct  just  and  necessary  legislation.  If,  indeed, 
it  AAns  highly  probable  that  the  poAver,  by  being  left  Avitii  a major- 
ity, Avould  be  abused— if  the  interests  of  the  Eastern  and  Middle 
States  Avere  purely  and  Avholly  commercial,  and  Avould  be  likely 
so  to_§hape  the  legislation  of  the  country  as  to  encourage  the 
p’OAvtli  of  its  mercantile  marine,  at  the  expense  of  other  forms  of 
industry  and  enterprise,  and  no  other  suitable  and  efficient  checks 
could  be  found — then  the  restriction  proposed  might  be  proper 
and  necessary. 

But  in  truth  the  separate  interests  of  the  Eastern  and  Middle 


CONSTITUTIONAL  HISTORY. 


508 

States,  wlien  closely  viewed,  were  not  in  all  respects  the  same. 
Connecticut  and  New  Jersey  were  agricultural  states.  New  York 
and  Pennsylvania,  although  interested  in  maritime  commerce,  were 
destined  to  be  great  producers  of  the  most  important  grains. 
Maryland,  although  a commercial,  was  also  an  agricultural  state. 
The  new  states  likely  to  be  formed  in  the  West  would  be  almost 
whollv  agricultural,  and  would  have  no  more  shipping  than  might 
be  i^equired  to  move  the  surplus  products  of  their  soil  upon  their 
great  inland  lakes  towards  the  shores  of  the  Atlantic.  All  these 
states,  existing  and  expectant,  were  interested  to  obtain  commercial 
treaties  with  foreign  countries  ; all  needed  the  benefits  of  uniform 
commercial  regulations ; but  they  w^ere  not  all  equally  interested 
in  a high  degree  of  encouragement  to  the  growth  of  American 
shipping,  by  means  of  a stringent  navigation  act  that  would  bear 
heavily  upon  the  Southern  planter. 

Not  only  was  there  a very  considerable  protection  against  the 
abuse  of  its  power  by  a sectional  majority,  in  these  more  minute 
diversities  of  interest,  but  there  were  also  two  very  efiicient  legis- 
lative checks  upon  that  power  already  introduced  into  the  govern- 
ment. If  an  unjust  and  oppressive  measure  had  commanded  a 
majority  in  the  House  it  might  be  defeated  in  the  Senate,  or,  if 
that  check  should  fail,  it  might  be  arrested  by  the  executive. 

It  had,  nevertheless,  been  made  part  of  the  limitations  upon 
the  commercial  power,  embraced  in  the  report  of  the  committee 
of  detail,  that  a navigation  act  should  require  a vote  of  two  thirds 
of  both  branches  of  the  legislature.  The  vote  which  adopted  the 
prohibition  against  taxes  on  exports,  taken  on  the  21st  of  August, 
was  followed,  on  that  day  and  the  next,  by  an  excited  debate 
on  the  taxation  of  the  slave-trade,  in  which  the  three  states  of 
Georgia,  North  Carolina,  and  South  Carolina  made  the  limitation 
upon  the  power  of  the  Union  over  thi^s  trafiic  the  condition  of  their 
accepting  the  Constitution.  This  debate  was  closed  by  the  propo- 
sition of  Gouverneur  Morris,  to  refer  the  whole  subject  to  a com- 
mittee of  one  from  each  state,  in  order  that  the  three  matters  of 
exports,  the  slave-trade,  and  a navigation  act  might  form  a bar- 
gain or  compromise  between  the  Northern  and  the  Southern 
states.'  But  the  prohibition  against  taxing  exports  had  already 


1 Elliot,  V.  460. 


509 


PROHIBITION  OF  THE  SLAVE-TRADE. 

been  agreed  to,  and  tlicre  remained  to  be  committed  only  tlie  pro- 
posed restriction  against  taxing  or  ])roliibiting  tlie  migration  or 
im])ortation  of  such  persons  as  the  states  might  see  fiAo  admit, 
the  restriction  which  required  a capitation  tax  to  conform  to  tlie 
census,  and  the  proposed  limitation  upon  the  power  to  pass  a nav- 
igation act.  Thus,  in  effect,  the  questions  to  come  before  this 
committee  were,  whether  the  slave-trade  should  be  excepted  from, 
botl^e  commercial  and  revenue  powers  of  the  general  govern- 
ment, and  whether  the  commercial  power  should  be  subjected  to 
a restriction  which  required  a vote  of  two  thirds  in  dealino-  with 
the  commercial  interests  of  the  Union. 

e know  very  little  of  the  deliberations  of  this  committee ; 
but  as  each  state  was  equally  represented  in  it,  and  as  the  position 
of  the  different  sectional  objects  is  quite  clear,  wm  can  have  no  dif- 
liculty  in  forming  an  opinion  as  to  the  motives  and  purposes  of 
the  settlement  which  resulted  from  their  action,  or  in  obtaining  a 
right  estimate  of  the  result  itself. 

In  the  first  place,  then,  we  are  to  remember  the  previous  con- 
cessions already  made  by  the  I^orthern  States,  and  the  advantao-es 
resulting  from  them.  These  concessions  were  the  representation 
ot  the  slaves  and  the  exemption  of  exports  from  taxation.  If  the 
^aves  had  not  been  included  in  the  system  of  representation,  the 
JNorthern  States  could  have  had  no  political  motive  for  acquirincr 
the  power  to  put  an  end  to  the  slave-trade.  If  the  exports  of  their 
staple  productions  had  not  been  withdrawn  from  the  revenue 
power,  the  Southern  States  could  have  had  no  very  strong  or  spe- 
cial motive  to  draw  them  into  the  new  Union ; but  with  such  an 
exemption  they  could  derive  benefits  from  the  Constitution  as 
great  as  those  likely  to  be  enjoyed  by  their  IS'orthern  confederates 
Loth  parties,  therefore,  entered  the  final  committee  of  compro- 
mise with  a strong  desire  to  complete  the  Union  and  to  establish 
the  new  government.  ThoJIorthern  States  wished  for  a full  com- 
mercial power,  including  the  slave-trade  and  navigation  laws,  to 
be  dependent  on  the  voices  of  a majority  in  Congress.  The  South- 
ern States  struggled  to  retain  the  right  to  import  slaves,  and  to 
limit  the  enactment  of  navigation  laws  to  a vote  of  two  thirds 
Loth  parties  could  be  gratified  only  by  conceding  some  portion  of 
their  respective  demands. 

If  the  I^orthern  States  could  accept  a future,  instead  of  an  im- 


510 


CONSTITUTIONAL  HISTORY. 


mediate,  prohibition  of  the  slave-trade,  they  could  gain  ultimately 
a full  commercial  power  over  all  subjects,  to  be  exercised  by  a 
national  majority.  If  the  Southern  States  could  confide  in  a na- 
tional majority,  so  far  as  to  clothe  them  with  full  ultimate  power 
to  regulate  commerce,  they  could  obtain  the  continuance  of  the 
slave-trade  for  a limited  period. 

Such  was  in  reality  the  adjustment  made  and  recommended 
by  the  committee.  They  proposed  that  the  migration  or  impor- 
tation of  such  persons  as  the  several  states  then  existing  might 
think  proper  to  admit  should  not  be  prohibited  by  the  national 
legislature  before  the  year  1800,  but  that  a tax  or  duty  might  be 
imposed  on  such  persons,  at  a rate  not  exceeding  the  average  of 
the  duties  laid  on  imports ; that  the  clause  relating  to  a capitation 
tax  should  remain  ; and  that  the  provision  requiring  a navigation 
act  to  be  passed  by  a vote  of  two  thirds  should  be  stricken  out.' 

No  change  was  made  in  this  arrangement  when  it  came  before 
the  Convention,  except  to  substitute  the  year  1808  as  the  period 
at  which  the  restriction  on  the  commercial  power  w^as  to  termi- 
nate, and  to  provide  for  a specific  tax  on  the  importation  of  slaves, 
not  exceeding  ten  dollars  on  each  person."  The  remaining  features 


1 Elliot,  V.  470,  471. 

^ Two  grave  objections  were  made  to  this  settlement  respecting  the  impor- 
tation of  slaves.  ^Mr.  Madison  records  himself  as  saying,  in  answer  to  the  motion 
of  General  Pinckney  to  adopt  the  year  1808,  that  twenty  years  would  produce 
all  the  mischief  that  could  be  apprehended  from  the  slave-trade,  and  that  so 
long  a term  would  be  more  dishonorable  to  the  American  character  than  to  say 
nothing  about  it  in  the  Constitution.  But  the  real  question  was,  whether  the 
power  to  prohibit  the  importation  at  any  time  could  be  acquired  for  the  Consti- 
tution ; and  the  facts  show  that  it  could  have  been  obtained  only  by  the  arrange- 
ment proposed  and  carried.  The  votes  of  seven  states  against  four,  given  for 
General  Pinckney’s  motion,  show  the  convictions  then  entertained.  The  other 
objection  (urged  by  Roger  Sherman  and  IVIr.  Madison)  was,  that  to  lay  a^  tax 
upon  imported  slaves  implied  an  acknowledgment  that  men  could  be  articles 
of  property.  But  it  appears  from  the  statements  of  other  members,  also^  recorded 
by  Madison,  that  it  was  part  of  the  compromise  agreed  upon  in  committee,  that 
the  slave-trade  should  lie  placed  under  the  revenue  power,  in  consideration  of 
its  not  being  placed  at  once  within  the  commercial  power.  It  also  appears  that 
the  tax  was  made  to  apply  to  the  ^^importation  of  such  persons  as  the  states 
might  see  fit  to  admit,”  until  the  year  1808,  in  order  to  include  and  to  discourage 
the  introduction  of  convicts. 

But  the  principal  object  was  undoubtedly  the  slave-trade;  and  this  particu- 


PKOniBITION  OF  THE  SLAVE-TRADE.  QH 

Of  this  settlement,  relating  to  a capitation  tax  and  a navigation 
act,  were  sanctioned  by  a large  majority  of  the  states.' 

Thus,  by  timely  and  well-considered  concessions  on  each  side, 
was  the  slave-trade  brought  immediately  within  the  revenue  power 
of  the  general  government,  and  also,  at  the  expiration  of  twenty 
years,  within  its  power  to  regulate  commerce.  By  the  same 
means  the  commercial  power,  without  any  other  restriction  than 
that  relating  to  the  temporary  toleration  of  the  importation  of 
slaves,  was  vested  in  a national  majority.  This  result  at  once 
placed  the  foreign  slave-trade  by  American  vessels  or  citizens 
within  the  control  of  the  national  legislature,  and  enabled  Con- 
gress to  forbid  the  carrying  of  slaves  to  foreign  countries ; and  at 
the  end  of  the  year  1808  it  brought  the  whole  traffic  within  the 
reach  of  a national  prohibition." 

Too  liigh  an  estimate  cannot  well  be  formed  of  the  importance 
and  value  of  this  final  settlement  of  conflicting  sectional  interests 
and  demands.  History  has  to  thank  the  patriotism  and  liberality 
o.  the  Northern  States  for  having  acquired,  for  the  government 
of  the  Union,  by  reasonable  concessions,  the  power  to  terminate 
the  African  slave-trade.  We  know,  from  almost  every  day’s  ex- 
perience since  the  founding  of  the  government,  that  individual 
cupidity,  which  knows  no  geographical  limits,  which  defies  public 
opmK3n  whether  in  the  North  or  in  the  South,  required  and  still 
requires  the  restraint  and  chastisement  of  national  power.  The 


lar  phraseology  Avas  employed,  instead  of  speaking  directly  of  the  importation 
of  slaves  into  the  states  of  North  Carolina,  South  Carolina,  and  Georgia,  in  order 
on  the  one  hand,  not  to  give  offence  to  those  states,  and,  on  the  other,  to  avoid 
offending  those  who  objected  to  the  use  of  the  Avord  slaves  ” in  the  Constitution 
Elliot,  V.  477,  478. 

^ ‘ That  part  of  tlie  compromise  relating  to  tlie  slave-trade,  etc.,  was  adopted 

in  Convention  by  the  votes  of  New  Hampshire,  Massachusetts,  Connecticut  Marv- 
hind.  North  Carolina,  South  Carolina,  Georgia,  uy,  7;  New  Jersey,  Penusylvani; 
Delaware,  Virginia,  no,  4.  Maryland,  Virginia,  North  Carolina,  and  Georgia 
voted  for  a proposition  made  by  C.  Pinckney,  to  postpone  the  report,  in  order 
to  take  up  a clause  requiring  all  commercial  regulations  to  be  passed  by  two 
thirds  of^  each  house.  But  on  the  rejection  of  this  motion,  the  report  of  the 
compromise  committee,  recommending  that  a two-thirds  vote  for  a navio-ation 
act  be  stricken  out,  was  agreed  to,  nem.  con. ; as  was  also  the  clause  relattnc  to 
a capitation  tax.  ® 

® See  the  note  on  the  American  abolition  of  the  slave-trade,  ante. 


CONSTITUTIONAL  IIISTOKY. 

separate  authority  of  the  states  would  have  been  wholly  unequal 
to  the  suppression  of  the  slave-trade;  for  even  if  they  had  al 
finally  adopted  the  policy  of  a stringent  prohibition,  without  a 
navy  and  without  treaties,  they  could  never  have  contended 
ao-ainst  the  bold  artiflce  and  desperate  cunning  of  avarice,  stimu- 
lated by  the  enormous  gains  which  have  always  been  reaped  in 
this  inhuman  trade. 

The  just  and  candid  voice  of  History  has  also  to  thank  i 
Southern  statesmen  who  consented  to  this  arrangement,  for  bav- 
in- clothed  a majority  of  tlie  two  houses  of  Congress  wdh  a full 
commercial  power.  They  felt,  and  truly  felt,  that  this  was  a 
great  concession.  But  they  looked  at  what  they  had  gained. 
They  had  gained  the  exemption  of  their  staple  productions  from 
taxation  as  objects  of  foreign  commerce ; tlie  enumeration  of  then 
slaves  in  the  basis  of  Congressional  representation ; and  the  sett  e- 
ment  of  the  slave-trade  upon  terms  not  offensive  to  state  pride. 
They  had  also  gained  the  Union,  with  its  power  to  maintain  an 
armV  and  a navy -with  its  power  and  duty  to  protect  them 
a-ainst  foreign  invasion  and  domestic  insurrection,  and  to  secure 
their  republican  constitutions.  They  looked,  therefore,  upon  Ae 
grant  of  the  power  to  regulate  commerce  by  the  ordinary  modes 
of  le-islation  in  its  relations  to  the  interests  of  a great  empire, 
^hose  foundations  ought  to  be  laid  broadly  and  deeply  on  h 
national  welfare.'  They  saw  that  the  Revolution  had  cost  the 
Eastern  States  enormous  sacrifices  of  commercial  yealth  and  that 
tiie  weakness  of  the  Confederation  had  destroyed  the  little  rem- 
nant of  their  trade."  They  saw  and  admitted  the  necessity  for  an 
unrestrained  control  over  the  foreign  comme^e  of  coiintiy 
it  was  ever  to  rise  from  the  prostrate  condition  in  i.  Inch  it  1 a 
been  placed  by  foreign  powers.  They  acted  according ly  ; and  b 
tl  r action  they  e^bled  the  States  of  North  Carolma,  South 
Carolina,  and  Georgia  to  enter  the  new  Union  without  humilia- 
tion  and  without  loss.' 

. See  tl.c  rcnvivks  of  Jolin  Rutledge.  Madison,  Elliot,  V.  491. 

: titttrade  was  insisted  upon  l,v  tlie  delegates  of 

The  1'"' ^ prUle  and  a mattev  of  practical  inter- 

est""  Smurtn;  increase  of  their  slave  population  hy  new  in, portals 

as  a thing^of  peculiarly  ilomestic  concern,  the  control  of  uh.ch  t icj  uue  un 


INCREASE  OF  SLAVE  POPULATION. 


513 


Tluis  was  accomplished,  so  far  as  depended  on  the  action  of 
this  Convention,  that  memorable  compromise  whicli  gave  to  the 
Union  its  control  over  the  commercial  relations  of  the  states  with 
foreign  nations  and  Avith  each  other.  An  event  so  fraught  Avith 
consequences  of  the  utmost  importance  cannot  be  dismissed  Avith- 
out  some  of  the  reflections  appropriate  to  its  consideration. 

Nature  had  marked  America  for  a great  commercial  nation. 

I The  SAveep  of  the  Atlantic  coast  from  the  Bay  of  Fundy  to  the 
Gulf  of  Florida,  comprehending  tAventy  degrees  of  latitude,  broken 
into  capacious  bays  and  convenient  harbors,  and  receiving  the 

I 

• ing  to  transfer  to  the  general  government.  But  they  also  contended  for  a politi- 
cal  light  which  tlieir  states  intended  to  exercise.  The  following  table,  taken 
:i  from  the  United  States  Census,  shows  that  in  the  twenty  years  which  elapsed 
. from  1790  to  1810,  during  eighteen  of  which  the  importation  of  slaves  could  not 
! be  prohibited  hy  Congress,  the  slaves  of  those  three  states  increased  in  a ratio  so 
;i  much  larger  than  the  rate  of  increase  after  the  year  1808  as  to  make  it  apparent 
^ that  it  was  not  a mere  abstraction  on  which  they  insisted.  The  right  to  admit 
the  importation  of  slaves  was  exercised,  and  was  intended  to  be  exercised— as 
[[  some  of  the  delegates  of  the  three  states  declared  in  tlie  Convention. 

■ Progress  of  the  Slave  Population  from  1790  to  1850,  shoaving  the  In- 
1.  crease  per  Cent,  in  each  Period  of  Ten  Years. 


North  Carolina.  South  Carolina.  Georgia. 

1790  to  1800  32.53  36.46  102.99 

1800  to  1810  26.65  34.35  77.12 

1810  to  1820  21.43  31.62  42.23 

1820  to  1830  19.79  22.62  45.35 

1830  to  1840  0.08  3.68  29.15 

1840  to  1850  17.38  17.71  35.85 


i,  But  Avhile  tlie  census  shov’s  that  tlie  power  to  admit  slaves  was  exercised 
[Treely  during  the  twenty  years  that  followed  the  adoption  of  the  Constitution  of 
i the  United  States,  it  also  shows  that  the  states  which  insisted  on  retaining  it  for 
; that  period  could  well  afford  to  surrender  it  at  the  stipulated  time.  In  1810  the 
' pioportion  of  the  blacks  of  North  Carolina  to  the  whole  population  was  32.24 
f per  cent.,  and  in  1850  it  was  36.36;  in  South  Carolina  the  proportion  in  1810 
I was  48.4,  and  in  1850,  58.93 ; in  Georgia,  in  1810  it  was  42.4,  and  in  1850,  42.44. 

, It  is  not  probable,  therefore,  that  the  prosperity  of  those  states  was  diminished 
i hy  the  discontinuance  of  the  slave-trade.  The  constitutional  power  of  Congress 
flo  prohibit  the  importation  took  effect  and  was  exercised  in  1808.  The  great 
1 diminution  in  the  rates  of  increase  during  this  period  is  probably  due  to  the  re- 
f aioval  of  slaves  into  Alabama,  Arkansas,  Louisiana,  and  Texas. 

; 1—33 

i 

I 

I 

I 


CONSTITUTIONAL  HISTORY. 


514 

inward  flow  of  the  sea  into  great  navigable  rivers  that  stretched 
far  into  the  interior,  presented  an  access  to  the  ocean  not  surpassed 
by  that  of  any  large  portion  of  the  globe.  This  long  range  of 
sea-coast  embraced  all  the  varieties  of  climate  that  are  found 
between  a hard  and  sterile  region,  where  summer  is  but  the  breath 
of  a few  fervid  weeks,  and  the  ever-blooming  tropics,  where  win- 
ter is  unknown.  The  products  of  the  different  regions,  already 
entering,  or  fit  to  enter,  into  foreign  commerce,  attested  as  great 
a variety  of  soils.  The  proximity  of  the  country  to  the  West  In- 
dies, where  the  Eastern  and  the  Middle  States  could  find  the  best 
markets  for  some  of  their  most  important  exports,  afforded  the 
promise  of  a highly  lucrative  trade,  while  the  voyage  to  the  East 
Indies  from  any  American  port  could  be  performed  in  as  short  a 
time  as  from  England  or  Holland  or  France.  In  the  South  there 
were  great  staples  already  largely  demanded  by  the  consumption 
of  Europe.  In  the  North  there  were  fisheries  of  singular  impor- 
tance, capable  of  furnishing  important  additions  to  the  wealth  of 
the  coifntry.  Beyond  the  Alleghanies  the  West,  with  its  vast  in- 
ternal waters  and  its  almost  unequalled  fertility,  had  been  opened 
to  a rapid  emigration,  which  was  soon  to  lay  the  foundation  of 
new  states,  destined  to  be  the  abodes  of  millions  of  men. 

The  very  variety  and  extent  of  these  interests  had  for  many 
years  occasioned  a struggle  for  some  mode  of  reconciling  and  har- 
monizing them  all.  But,  divided  into  separate  governments,  the 
commercial  legislation  of  the  states  could  produce  nothing  but  the 
confusion  and  uncertainty  which  retaliation  necessarily  engenders. 
Different  systems  and  rates  of  revenue  were  in  force  in  seaports 
not  a hundred  miles  apart,  through  which  the  inhabitants  of  other 
jurisdictions  were  obliged  to  draw  their  supplies  of  foreign  com- 
modities and  to  export  their  own  productions.  The  paper-money 
systems  of  the  several  states  made  the  commercial  value  of  com 
quite  different  in  different  places,  and  gave  an  entirely  insecure 

basis  to  trade.  v i . 

The  reader  who  has  followed  me  through  the  preceding  chap- 
ters has  seen  how  the  people  of  the  United  States,  froin  the  eai- 
liest  stages  of  the  Kevolution,  struggled  to  free  themselves  from 
these  embarrassments : how  they  commenced  with  a jea  ous  res 
ervation  of  state  authority  over  all  matters  of  commerce  and  rev- 
enue ; how  they  undertook  to  supply  the  necessities  of  a central 


NATIONAL  SPIRIT  OF  ACQUISITION.  515 

government  by  contributions  which  they  had  not  the  power  to 
make  good,  because  tlieir  commercial  condition  did  not  admit  of 
heavy  taxation ; liow  they  endeavored  to  pass  from  this  system  to 
a grant  of  temporary  revenues  and  temporary  commercial  regula- 
tion, to  be  vested  in  the  federal  Union  ; how  they  found  it  imprac- 
ticable to  agree  upon  the  principles  and  details  of  a temporary 
power;  how  they  turned  to  separate  commercial  leagues,  each 
with  its  immediate  neighbors,  and  were  disappointed  in  the  result 
or  frustrated  in  the  effort ; and  how  at  last  they  came  to  the  con- 
ception of  a full  and  irrevocable  surrender  of  commercial  and  fis- 
cal regulations  to  a central  legislature,  that  could  grasp  the  inter- 
ests of  the  whole  country  and  combine  them  in  one  harmonious 
system. 

The  influence  of  the  commercial  and  revenue  powers  thus  ob- 
tained by  the  general  government,  on  the  condition  of  this  coun- 
try, has  far  exceeded  the  most  sanguine  hopes  which  the  framers 
of  the  Constitution  could  have  indulged.  No  one  can  doubt  that 
the  people  of  America  owe  to  it  both  the  nature  and  the  degree  of 
their  actual  prosperity ; and  as  the  national  prosperity  has  given 
them  importance  in  the  world,  it  is  just  and  accurate  to  say  that 
commerce  and  its  effects  have  elevated  republican  institutions  to 
a high  dignity  and  influence.  Let  the  reader  consider  the  in- 
terests of  commerce,  in  their  widest  relations  with  all  that  they 
comprehend — the  interests  of  the  merchant,  the  artisan,  and  the 
tiller  of  the  soil  being  alike  involved — as  the  chief  purpose  of  the 
new  government  given  to  this  Union  ; let  him  contemplate  this  as 
the  central  object  around  which  are  arranged  almost  all  the  great 
provisions  of  the  Constitution  of  the  United  States,  and  he  will 
see  in  it  a w^onderfully  harmonious  and  powerful  system,  created 
for  the  security  of  property  and  the  promotion  of  the  material 
welfare  and  prosperity  of  individuals,  whatever  their  occupation, 
employment,  or  condition.  That  such  a code  of  civil  government 
should  have  sprung  from  the  necessities  of  commerce  is  surelj^  one 
of  the  triumphs  of  modern  civilization. 

It  is  not  to  be  denied  that  the  sedulous  care  with  which  this 
great  provision  was  made  for  the  general  prosperity  has  had  the 
effect  of  impressing  on  the  national  character  a strong  spirit  of 
acquisition.  The  character  of  a people,  however,  is  to  be  judged 
not  merel}"  by  the  pursuit  or  the  possession  of  wealth,  but  chiefly 


CONSTITUTIONAL  HISTORY. 


516 

by  the  USG  which  they  make  of  it.  If  the  inhabitants  of  the 
United  States  can  justly  claim  distinction  for  the  benevolent 
virtues ; if  the  wealth  that  is  eagerly  sought  and  rapidly  ac- 
quired is  freely  used  for  the  relief  of  human  suffering ; if  learn- 
ing, science,  and  the  arts  are  duly  cultivated ; if  popular  education 
is'an  object  of  lavish  expenditure  ; if  the  institutions  of  religion, 
though  depending  on  a purely  voluntary  support,  are  provided  for 
liberallj^  and  from  conscientious  motives — then  is  the  national 
spirit  of  acquisition  not  without  fruits  of  which  it  has  no  need  to 
be  ashamed. 

The  objection  that  the  Constitution  of  the  United  States  and 
the  immense  prosperity  which  has  flowed  from  it  were  obtained 
by  certain  concessions  in  favor  of  the  institution  of  slavery  results 
from  a merely  superficial  view  of  the  subject.  If  we  would  form 
a right  estimate  of  the  gain  or  loss  to  human  nature  effected  by 
any  given  political  arrangement,  we  must  take  into  consideration 
the  antecedent  facts,  and  endeavor  to  judge  whether  a better  result 
could  have  been  obtained  by  a different  mode  of  dealing  with 
them.  We  shall  then  be  able  to  appreciate  the  positive  good  that 
has  been  gained  or  the  positive  loss  that  has  been  suffered. 

The  prominent  facts  to  be  considered  are,  in  the  first  place, 
that  slavery  existed,  and  would  continue  to  exist,  in  certain  of 
the  states,  and  that  the  condition  of  the  African  race  in  those 
stdtes  was  universally  regarded  as  a matter  of  purely  local  con- 
ern.  It  could  not,  in  fact,  have  been  otherwise,  for  there  were 
slaves  in  every  state  excepting  Massachusetts  and  New  Hamp- 
shire ; and  among  the  other  states  in  Avhich  measures  had  been, 
or  were  likely  to  be,  taken  for  the  removal  of  slavery  there  was 
a great  variety  of  circumstances  affecting  the  time  and  mode  in 
which  it  should  be  finally  extinguished.  As  soon  as  the  point  was 
settled,  in  the  formation  of  the  Constitution  of  the  United  States, 
that  the  state  governments  were  to  be  preserved,  with  all  their 
powers  unimpaired  which  were  not  required  by  the  objects  of  the 
national  government  to  be  surrendered  to  the  Union,  the  domestic 
relations  of  their  inhabitants  with  each  other  necessarily  remained 
under  their  exclusive  control.  Those  relations  were  not  involved 
in  the  purposes  of  the  federal  Union. 

So  soon,  also,  as  this  was  perceived  and  admitted,  it  became  a 
necessary  consequence  of  the  admission  that  the  national  author- 


NATIONAL  SPIRIT  OF  ACQUISITION.  517 

ity  should  guarantee  to  the  people  of  each  state  the  right  to  shape 
and  modify  their  own  social  institutions  j for  without  this  princi- 
ple laid  at  the  foundation  of  the  Union  there  could  be  no  peace  or 
security  for  such  a mixed  s}^stem  of  government. 

Ill  the  second  place,  we  have  to  consider  the  fact  that,  among 
the  political  rights  of  the  states  anterior  to  the  national  Constitu- 
tion, was  the  right  to  admit  or  prohibit  the  further  importation 
of  slaves— a traffic  not  then  forbidden  by  any  European  nation  to 
its  colonies,  but  which  had  been  interdicted  by  ten  of  the  Ameri- 
can states.  Ihe  transfer  of  this  right  to  the  federal  Union  was  a 
purely  voluntary  act ; it  was  not  strictly  necessary  for  the  purposes 
for  which  it  was  proposed  to  establish  the  Constitution  of  the 
United  States ; although  there  were  political  reasons  for  which  a 
part  of  the  states  might  wish  to  acquire  control  over  this  subject, 
as  well  as  moral  reasons  why  all  the  states  should  have  desired  to 
vest  that  control  in  the  general  government.  Three  of  the  states, 
however,  as  we  have  seen,  took  a different  view  of  their  interest 
and  duty,  and  declined  to  enter  the  new  Union  unless  this  traffic 
should  be  excepted  from  the  power  over  commerce  for  a period  of 
twenty  years. 

It  is  quite  plain  that,  if  these  facts  had  been  met  and  dealt 
with  in  a manner  different  from  the  settlement  that  was  actually 
made,  one  of  two  consequences  must  have  ensued  : — either  no 
Constitution  at  all  could  have  been  adopted,  or  there  would  have 
been  a union  of  some  kind,  from  Avhich  three  at  least  of  the 
states  must  have  been  excluded.  If  the  first,  by  far  the  most 
probable  contingency,  had  happened,  a great  feebleness  and  pov- 
erty of  society  must  have  continued  to  be  the  lot  of  all  these  states  ; 
there  must  have  been  perpetual  collisions  and  rival  confederacies ; 
there  certainly  would  have  been  an  indefinite  continuance  of  the 
slave-trade,  accompanied  and  followed  by  a great  external  press- 
ure upon  the  states  which  permitted  it,  which  Avould  have  led  to 
a war  of  races,  or  to  a frightful  oppression  of  the  slaves.  Most 
of  these  evils  would  have  followed  the  establishment  of  a partial 
confederacy. 


CHAPTER  XXYII. 

Report  of  the  Committee  of  Detail,  continued. — The  Remain- 
ing Powers  of  Congress.  — Restraints  upon  Congress  and 
UPON  THE  States. 

In  the  last  preceding  chapter  the  reader  has  traced  the  origin 
of  the  revenue  and  commercial  powers,  and  of  certain  restrictions 
applied  to  them  in  the  progress  of  those  great  compacts  by  means 
of  which  they  became  incorporated  into  the  Constitution.  We 
have  now  to  examine  some  other  qualifications  which  were  an- 
nexed to  those  powers  after  the  first  draft  of  the  instrument  had 
been  prepared  and  reported  by  the  committee  of  detail. 

That  committee  had  presented  a naked  power  to  lay  and  col- 
lect taxes,  duties,  imposts,  and  excises,^  with  a certain  restriction 
as  to  the  taxation  of  exports,  the  final  disposition  of  which  has 
been  already  described  ; but  they  had  designated  no  particular 
objects  to  which  the  revenues  thus  derived  were  to  be  applied. 
The  general  clause  embracing  the  revenue  power  was  atfirmed 
unanimously  by  the  Convention,  on  the  16th  of  August,  leaving 
the  exception  of  exports  for  future  action.  At  a subsequent  pe- 
riod we  find  the  words,  “to  pay  the  debts  and  provide  for  the 
common  defence  and  general  welfare  of  the  United  States,’  added 
to  the  clause  which  empowers  Congress  to  levy  taxes  and  duties ; 
and  it  is  a somewhat  important  inquiry,  how  and  with  what  pur- 
pose they  were  placed  there. 

While  the  powers  proposed  by  the  committee  of  detail  were 
under  consideration,  Mr.  Charles  Pinckney  introduced  several 
topics  designed  to  supply  omissions  in  their  report,  which  were 
thereupon  referred  to  that  committee.  The  purpose  of  one  of  his 
suggestions  was  to  provide,  on  the  one  hand,  that  funds  appro- 
priated for  the  payment  of  public  creditors  should  not,  during  the 


' Art.  VII.  § 1 of  the  first  draft  of  the  Constitution.  Elliot,  V.  378. 


REVENUE  POWERS. 


519 


time  of  such  appropriation,  be  diverted  to  any  other  purpose; 
and,  on  tlie  other  hand,  that  Congress  should  be  restrained  from 
establishing  })erpctual  revenues.  Another  of  his  suggestions  con- 
templated a ])o\ver  to  secure  the  ])ayment  of  the  i)ublic  debt,  and 
still  another  to  prevent  a violation  of  the  public  faith  when  once 
})ledged  to  any  public  creditor.'  Immediately  after  this  refer- 
ence Mr.  Kutledge  moved  for  what  Avas  called  a grand  commit- 
tee,'' to  consider  the  expediency  of  an  assumption  by  the  United 
States  of  the  state  debts ; and  after  some  discussion  of  the  sub- 
ject, such  a committee  was  raised,  and  Mr.  Eutledge’s  motion  was 
referred  to  them,  together  with  a proposition  introduced  by  Mr. 
Mason  for  restraining  grants  of  perpetual  revenue.^  Thus  it  ap- 
pears that  the  principal  subject  involved  in  the  latter  reference 
Avas  the  propriety  of  inserting  in  the  Constitution  a specific  power 
to  make  special  appropriations  for  the  payment  of  debts  of  the 
United  States  and  of  the  se\wal  states,  incurred  during  the  late 
AA^ar  for  the  common  defence  and  general  Avelfare ; and  not  to 
make  a declaration  of  the  general  purposes  for  AAdiich  revenues 
Avere  to  be  raised.  Both  committees,  hoAvever,  seemed  to  have 
been  charged  Avitli  the  consideration  of  some  restraint  on  the  reA^- 
enue  poAver,  Avitli  a vieAv  to  prevent  perpetual  taxes  of  any  kind. 
The  grand  committee  reported  first,  presenting  the  folio Aving  spe- 
cial provision  : “ The  legislature  of  the  United  States  shalHiave 
poAver  to  fulfil  the  engagements  Avhich  have  been  entered  into  by 
Congress,  and  to  discharge,  as  Avell  the  debts  of  the  United  States, 
as  the  debts  incurred  by  the  several  states  during  the  late  Avar  for 
the  common  defence  and  general  Avelfare.” " On  the  folloAving 
day  the  committee  of  detail  presented  a report,  recommending 
that  at  the  end  of  the  clause  already  adopted,  AAdiich  contained 
the  grant  of  the  revenue  poAver,  the  folloAving  Avords  should  be 
added  : for  payment  of  the  debts  and  necessary  expenses  of  the 

United  States  ; provided  that  no  laAV  for  raising  any  branch  of 
]’e venue,  except  Avhat  may  be  specially  apjiropriated  for  the  pay- 
ment of  interest  on  debts  or  loans,  shall  continue  in  force  for  more 
than years.” " 

* Auixust  18tli.  Elliot,  V.  440.  ^ A committee  of  one  member  from  each  state. 

Elliot,  V.  441.  To  the  same  gTand  committee  was  afterwards  referred  the 
subject  ot  the  militia.  See  infra. 

August  21st.  Elliot,  V.  451. 


® August  22d.  Ibid.,  402, 


520  CONSTITUTIONAL  HISTORY. 

Two  distinct  propositions  were  thus  before  the  Convention. 
One  of  them  contemplated  a qualification  of  the  revenue  power, 
the  other  did  not.  One  was  to  give  authority  to  Congress  to  pay 
the  revolutionary  debt,  both  of  the  United  States  and  of  the  states, 
and  to  fulfil  all  the  engagements  of  the  Confederation ; the  other 
was  to  declare  that  revenues  were  to  be  raised  and  taxes  levied 
for  the  purpose  of  paying  the  debts  and  necessary  expenses  of  the 
United  States,  limiting  all  revenue  laws,  excepting  those  which 
were  to  appropriate  specific  funds  to  the  payment  of  interest  on 
debts  or  loans,  to  a term  of  years.  When  these  propositions  came 
to  be  acted  upon,  that  reported  by  the  grand  committee  was  modi- 
fied into  the  declaration  that  “ all  debts  contracted  and  engage- 
ments entered  into,  by  or  under  the  authority  of  Congress,  shall 
be  as  valid  against  the  United  States,  under  this  Constitution,  as 
under  the  Confederation.”  The  state  debts  were  thus  left  out ; 
the  declaration  was  prefixed,  as  an  amendment,  to  the  clause 
which  granted  the  revenue  power,  and  was  thus  obviously  no 
qualification  of  that  power.' 

But  it  was  thought  by  Mr.  Sherman  that  the  clause  for  laying 
taxes  and  duties  ought  to  have  connected  with  it  an  express  pro- 
vision for  the  payment  of  the  old  debts ; and  he  accordingly  moved 
to  add  to  that  clause  the  words,  “ for  the  payment  of  said  debts, 
and  for  the  defraying  the  expenses  that  shall  be  incurred  for  the 
common  defence  and  general  welfare.”  This  was  regarded  by 
the  Convention  as  unnecessary,  and  was  therefore  not  adopted.^ 
But  the  provision  reported  by  the  committee  of  detail,  which  was 
intended  as  a qualification  of  the  revenue  power,  by  declaring  the 
objects  for  which  taxes  and  duties  were  to  be  levied,  had  not  yet 
been  acted  upon,  and  on  the  31st  of  August  this,  with  all  other 
matters  not  disposed  of,  was  referred  to  a new  grand  committee, 
Avho,  on  the  4th  of  September,  introduced  an  amendment  to  the 
• revenue  clause,  which  made  it  read  as  follows:  “The  legislature 
shall  have  power  to  lay  and  collect  taxes,  duties,  imposts,  and  ex- 
cises, to  pay  the  debts",  and  provide  for  the  common  defence  and 

^ See  the  proceedings  which  took  place,  August  22d,  24tli,  and  25th.  El- 
liot, V.  462-464,  471,  475-477. 

Elliot,  V.  476,  477.  Mr.  Madison  says,  “ This  proposition,  as  being  unncc- 
essarv,  was  disagreed  to;”  that  is,  unnecessary  as  a security  of  the  old  d(Ms  of 
the  United  States. 


REVENUE  POWERS. 


521 


general  welfare  of  the  United  States.”  This  amendment  was 
unanimously  adopted ; ' and  when  the  Constitution  was  revised, 
at  the  close  of  the  proceedings,  the  declaration  which  made  the 
debts  and  engagements  of  the  Confederation  obligatory  upon  the 
new  Congress  was  separated  from  the  context  of  the  revenue 
clause  and  placed  by  itself  in  the  sixth  article. 

There  is  one  other  restraint  upon  the  revenue,  as  well  as  upon 
the  commercial  power,  the  history  of  which  now  demands  our 
impiries.  But  in  order  to  understand  it  correctly,  it  will  be  nec- 
essary for  the  reader  to  recur  to  the  position  in  which  the  revenue 
and  commercial  powers  were  left  by  the  sectional  compromises 
described  in  the  last  chapter.  The  struggle  between  the  E’orthern 
and  the  Southern  States  concerning  the  limitations  of  those  pow- 
ers turned,  as  we  have  seen,  on  certain  restrictions  desired  by  the 
latter.  They  wished  to  have  exports  excepted  out  of  the  revenue 
power ; they  wished  to  have  a vote  of  two  thirds  made  necessary 
to  the  passage  of  any  commercial  regulation  ; and  three  of  them 
wished  to  have  the  slave-trade  excepted  from  both  the  revenue 
and  the  commercial  powers.  We  have  seen  that  the  result  of  the 
sectional  compromises  was  to  leave  the  commercial  and  revenue 
powers  unlimited,  excepting  by  the  saving  in  relation  to  the  slave- 
trade  ; that  they  left  the  revenue  power  unlimited,  excepting  by 
the  restriction  concerning  exports  and  a capitation  tax ; and  that 
the  commercial  power  was  to  be  exercised,  like  other  legislative 
powers,  by  a majority  in  Congress.  General  commercial  and 
revenue  powers,  then,  without  other  restrictions  than  these,  would 
enable  Congress  to  collect  their  revenues  where  they  should  see 
fit,  without  obliging  them  to  adopt  the  old  ports  of  entry  of  the 
states,  or  to  consider  the  place  where  a cargo  was  to  be  unladen. 
They  might  have  custom-houses  in  only  one  place  in  each  state, 
or  in  only  such  states  as  they  might  choose  to  select,  and  might 
thus  compel  vessels  bound  from  or  to  all  the  other  states  to  clear 
or  enter  at  those  places.  But,  on  the  other  hand,  a constitutional 
provision  which  would  require  them  to  establish  custom-houses  at 
the  old  ports  of  entry  of  the  states,  without  leaving  them  at  lib- 
erty to  establish  other  ports  of  entry,  or  to  compel  vessels  to  re- 
ceive on  board  revenue  officers  before  they  had  reached  their 


Elliot,  V.  506,  507. 


522 


CONSTITUTIONAL  HISTORY. 


ports  of  destination,  would  create  opportunities  and  facilities  for 
smuggling. 

It  appears  that  the  people  of  Maryland  felt  some  apprehen- 
sion that  an  unrestricted  power  to  make  commercial  and  fiscal 
regulations  might  result  in  compelling  vessels  hound  to  or  from 
Baltimore  to  enter  or  clear  at  Norfolk,  or  some  other  port  in 
Virginia.  The  delegates  of  Maryland  accordingly  introduced  a 
proposition,  which  embraced  two  ideas:  first,  that  Congress  shall 
not  oblige  vessels,  domestic  or  foreign,  to  enter  or  pay  duties  or 
imposts  in  any  other  state  than  in  that  to  which  they  may  be 
bound,  or  to  clear  from  any  other  state  than  that  in  which  their 
cargoes  may  be  laden ; secondly,  that  Congress  shall  not  induce 
vessels  to  enter  or  clear  in  one  state  in  preference  to  another,  by 
any  privileges  or  immunities.’  This  proposition  became  the  basis 
of  that  clause  of  the  Constitution  which  declares  that  no  pref- 
erence shall  be  given  by  any  regulation  of  commerce  or  revenue 
to  the  ports  of  one  state  over  those  of  another ; nor  shall  vessels 
bound  to,  or  from,  one  state,  be  obliged  to  enter,  clear,  or  pay 
duties  in  another.” " 

It  was  while  this  subject  of  the  equal  operation  of  the  com- 
mercial and  revenue  powers  upon  the  different  states  was  under 
consideration  that  the  further  provision  was  devised  and  incor- 
porated into  the  Constitution,  which  requires  all  duties,  imposts, 
and' excises  to  be  uniform  throughout  the  United  States.  This 
clause,  in  the  final  revision  of  the  instrument,  was  annexed  to  the 
power  of  taxation." 

The  commercial  power,  besides  being  subjected  to  the  restric- 
tions which  have  been  thus  described,  was  extended  to  a subject 
not  embraced  in  it  by  the  report  of  the  committee  of  detail.  They 
had  included  in  it  “ commerce  with  foreign  nations,  and  among 
the  several  states  ’’—meaning,  by  the  former  term,  not  to  include 
the  Indian  tribes  upon  this  continent,  but  all  other  communities, 
civilized  and  barbarian,  foreign  to  the  people  of  the  United  States. 
By  the  system  which  had  alwa^^s  prevailed  in  the  relations  of 
Europeans  and  their  descendants  with  the  Indians  of  Ameiica, 

> Elliot,  V.  478,  479. 

Constitution,  Art.  I.  § 9.  See  the  proceedings  wliicli  took  place  on  the 
proposition  of  the  Maryland  delegates.  Elliot,  V.  478,  479,  483,  502,  545. 

3 Elliot,  V.  543.  Constitution,  Art.  I.  § 8,  clause  1. 


INDIAN  TRIBES. 


523 


those  tribes  had  constantly  been  regarded  as  distinct  and  inde- 
pendent political  conininnities,  retaining  their  original  rights,  and 
among  them  the  nndis})uted  possession  of  the  soil ; subject  to  the 
exclusive  right  of  the  Euro^KW  nation  making  the  first  discovery 
of  their  territoiy  to  purchase  it.  This  principle,  incorporated  into 
the  ])ublic  law  of  Europe  at  the  time  of  the  discovery  and  settle- 
ment of  the  New  AYorld,  and  practised  by  general  consent  of  the 
nations  of  Europe,  was  the  basis  of  all  the  relations  maintained 
with  the  Indian  tribes  by  the  imperial  government,  in  the  time 
of  our  colonial  state,  b}^  our  Eevolutionary  Congress,  and  by  the 
United  States  under  the  Confederation.  It  recognized  the  Indian 
tribes  as  nations,  but  as  nations  peculiarly  situated,  inasmuch  as 
their  intercourse  and  their  power  to  dispose  of  their  landed  pos- 
sessions were  restricted  to  the  first  discoverers  of  their  territory. 
This  peculiar  condition  drew  after  it  two  consequences — first, 
that,  as  they  were  distinct  nations,  they  could  not  be  treated  as 
part  of  the  subjects  of  any  one  of  the  states,  or  of  the  United 
States ; and,  secondly,  that,  as  their  intercourse  and  trade  were 
subjected  to  restraint,  that  restraint  would  be  most  appropriate- 
ly exercised  by  the  federal  power.  So  general  was  the  acquies- 
cence in  these  necessities  imposed  by  the  principle  of  public  law 
which  defined  the  condition  of  the  Indian  tribes,  that  during  the 
whole . of  the  thirteen  years  which  elapsed  from  the  commence- 
ment of  the  Eevolution  to  the  adoption  of  the  Constitution,  the 
regulation  of  intercourse  with  those  tribes  was  left  to  the  fed- 
eral authority.  It  was  tacitly  assumed  by  the  Eevolutionary  Con- 
gress, and  it  was  expressly  conferred  by  the  Articles  of  Confed- 
eration. 

The  provision  of  the  Confederation  on  this  subject  gave  to 
the  United  States  the  exclusive  right  and  power  “ of  regulating 
the  trade  and  managing  all  affairs  with  the  Indians  not  members 
of  any  of  the  states,  provided  that  the  legislative  right  of  any 
state  within  its  own  limits  be  not  infringed  or  violated.”  The 
exception  of  such  Indians  as  were  members  of  any  state,  referred 
to  those  broken  members  of  tribes  who  had  lost  their  nationality, 
and  had  become  absorbed  as  individuals  into  the  political  com- 
munity of  the  whites.  With  all  other  Indians,  remaining  as  dis- 
tinct and  self-governing  communities,  trade  and  intercourse  were 
subject  to  the  regulation  of  Congress  j while  at  the  same  time 


52^ 


CONSTITUTIONAL  HISTORY. 


each  state  retained  to  itself  the  regulation  of  its  commerce  with 
all  other  nations.  The  broad  distinction  thus  early  established, 
and  thus  perpetuated  in  the  Confederation,  between  commerce 
with  the  Indian  tribes  and  commerce  with  ‘'foreign  nations,” 
explains  the  origin  and  introduction  of  a special  provision  for  the 
former,  as  distinguished  from  the  latter,  in  the  Constitution  of 
the  United  States. 

For  although  there  might  have  been  some  reason  to  contend 
that  commerce  with  “ foreign  nations  ” — if  the  grant  of  the  com- 
mercial power  had  not  expressly  embraced  the  Indian  tiibes 
would  have  extended  to  those  tribes,  as  nations  foreign  to  the 
United  States,  yet  the  entire  history  of  the  country,  and  the 
peculiarity  of  the  intercourse  needful  for  their  security,  made  it 
eminently  expedient  that  there  should  be  a distinct  recognition 
of  the  Indian  communities,  in  order  that  the  power  of  Congress 
to  regulate  all  commerce  with  them  might  not  only  be  as  ample 
as  that  relating  to  foreign  nations,  but  might  stand  upon  a dis- 
tinct assertion  of  their  condition  as  tribes.  Accordingly,  Mr. 
Madison  introduced  the  separate  proposition  “ to  regulate  affairs 
with  the  Indians,  as  well  within  as  without  the  limits  of  the 
United  States ^ and  the  committee  to  whom  it  wms  referred 
gave  effect  to  it,  by  adding  the  words,  ‘‘  and  wdth  the  Indian 
tribes,”  to  the  end  of  the  clause  containing  the  grant  of  the  com- 
mercial power."^ 

The  remaining  powers  of  Congress  may  be  considered  in  the 
order  in  which  they  were  acted  upon  by  the  Convention.  The 
powers  to  establish  a uniform  rule  of  naturalization,  to  coin  money 
and  regulate  the  value  thereof  and  of  foreign  coin,  and  tlx  the 
standard  of  weights  and  measures,  were  adopted  without  discus- 
sion and  with  entire  unanimity,  as  they  had  been  proposed  in  the 
draft  prepared  by  the  committee  of  detail.  The  power  to  estab- 
lish post-offices  was  extended  to  embrace  post-roads." 

These  were  succeeded  by  the  subject  of  borrowing  money  and 
emitting  bills  on  the  credit  of  the  United  States ; a power  that 
was  proposed  to  be  given  by  the  committee  of  detail,  while  they 
at  the  same  time  proposed  to  restrain  the  states  from  emitting 
bills  of  credit.  I have  not  been  able  to  discover  upon  what 


Elliot,  V.  439.  « Ibid.,  506,  507. 


3 Ibid.,  434.  Journal,  Elliot,  I.  245. 


BILLS  OF  CREDIT. 


525 


ground  it  was  supposed  to  be  proper  or  expedient  to  confer  a 
power  of  emitting  bills  of  credit  on  the  United  States,  and  to 
prohibit  the  states  from  doing  the  same  thing.  That  the  same 
thing  was  in  contemplation  in  the  two  provisions  reported  by  the 
committee  sufficiently  appears  from  the  debates  and  from  the 
history  of  the  times.  The  object  of  the  prohibition  on  the  states 
was  to  prevent  the  issue  and  circulation  of  paper  money;  the 
object  of  the  proposed  grant  of  power  to  the  United  States  was 
to  enable  the  government  to  employ  a paper  currency  when  it 
should  have  occasion  to  do  so.  But  the  records  of  the  discussions 
that  have  come  down  to  us  do  not  disclose  the  reasons  which 
may  have  led  to  the  supposition  that  a paper  currency  could  be 
used  by  the  United  States  with  any  more  propriety  or  safety  than 
by  a state.  One  of  the  principal  causes  which  had  led  to  the  ex- 
periment of  making  a national  government  with  power  to  prevent 
such  abuses  had  been  the  frauds  and  injustice  perpetrated  by  the 
states  in  their  issues  of  paper  money  ; and  there  was  at  this  very 
time  a loud  and  general  outcry  against  the  conduct  of  the  people 
of  Khode  Island,  who  kept  themselves  aloof  from  the  national 
Convention  for  the  express  purpose,  among  others,  of  retaining  to 
themselves  the  power  to  issue  such  a currency. 

It  is  possible  that  the  phrase  “ emit  bills  on  the  credit  of  the 
United  States”  might  have  been  left  in  the  Constitution  without 
any  other  danger  than  the  hazards  of  a doubtful  construction, 
which  would  have  confined  its  meaning  to  the  issuing  of  certifi- 
cates of  debt  under  the  power  to  borrow  money.”  But  this  was 
not  the  sense  in  Avhich  the  term  “ bills  of  credit  ” aaus  generally 
received  throughout  the  country,  nor  the  sense  intended  to  be 
giA^en  to  it  in  the  clause  Avhich  contained  the  prohibition  on  the 
states.  The  Avell-understood  meaning  of  the  term  had  reference 
to  paper  issues  intended  to  circulate  as  currency,  and  bearing  the 
public  promise  to  pay  a sum  of  money  at  a future  time,  AAffiether 
made  or  not  made  a legal  tender  in  payment  of  debts.  It  Avould 
haA-e  been  of  no  avail,  therefore,  to  have  added  a prohibition  against 
making  such  bills  a legal  tender.  If  a poAver  to  issue  them  should 
once  be  seen  in  the  Constitution,  or  should  be  suspected' by  the 
people  to  be  there,  Avrapped  in  the  power  of  borroAving  money,  the 
instrument  Avould  array  against  itself  a formidable  and  probably 
a fatal  opposition.  It  Avas  deemed  Aviser,  therefore,  eAxn  if  unfore- 


520 


CONSTITUTIONAL  HISTORY. 


seen  emergencies  might  in  some  cases  make  the  exercise  of  such  a 
power  useful,  to  withhold  it  altogether.  It  was  accordingly  strick- 
en out  by  a vote  of  nine  states  against  two,  and  the  authority  of 
Congress  was  thus  confined  to  borrowing  money  on  the  credit  of 
the  United  States,  which  appears  to  have  been  intended  to  include 
the  issuing  of  government  notes  not  transferable  as  currency. 

The  clauses  which  authorize  Congress  to  constitute  tribunals 
inferior  to  the  Supreme  Court,^  and  to  make  rules  as  to  captures 
on  land  and  water  the  latter  comprehending  the  grant  of  the 
entire  prize  jurisdiction  — were  assented  to  without  discussion/ 
Then  came  the  consideration  of  the  criminal  jurisdiction  in  admi- 
ralty, and  that  over  offences  against  the  law  of  nations.  The  com- 
mittee of  detail  had  authorized  Congress  “ to  declare  the  law  and 
punishment  of  piracies  and  felonies  committed  on  the  high  seas, 

. . . and  of  offences  against  the  law  of  nations.”  The  expression 
to  ‘‘  declare  the  law,”  etc.,  was  changed  to  the  words  define  and 
punish,”  for  the  following  reason.  Piracy  is  an  offence  defined 
by  the  law  of  nations,  and  also  by  the  common  law  of  England. 
But  in  those  codes  a single  crime  only  is  designated  by  that  term.^ 
It  was  necessary  that  Congress  should  have  the  powder  to  declare 
whether  this  definition  was  to  be  adopted,  and  also  to  determine 
whether  any  other  crimes  should  constitute  piracy.  In  the  same 
Avay  the  term  “felony”  has  a particular  meaning  in  the  common 
law,  and  it  had  in  the  laws  of  the  different  states  of  the  Union  a 
somewhat  various  meaning.  It  was  necessary  that  Congress  should 
have  the  power  to  adopt  any  definition  of  this  term,  and  also  to 
determine  what  other  crimes  should  be  deemed  felonies.  So,  also, 
there  were  various  offences  known  to  the  law^  of  nations,  and  gen- 
erally regarded  as  such  by  civilized  states.  But  before  Congress 
could  have  powder  to  punish  for  any  of  those  offences  it  wmuld  be 
necessary  that  they,  as  the  legislative  organ  of  the  nation,  should 
determine  and  make  known  what  acts  were  to  be  regarded  as 
offences  against  the  law  of  nations ; and  that  the  power  to  do  this 
should  include  both  the  power  to  adopt  from  the  code  of  public 


> See  the  debate,  and  Mr.  Madison’s  explanation  of  his  vote,  Elliot,  V.  434, 

435,  and  the  note  on  the  latter  page.  _ 

2 Constitution,  Art.  I.  ^ 8,  clause  9.  3 ibid.,  clause  11.  Elliot,  V.  436. 

5 That  is  to  say,  it  is  the  same  crime,  committed  on  the  high  seas,  that  is  e 
nominated  robbery  when  committed  on  the  land. 


PERMANENT  ARMIES. 


527 


law  offences  already  defined  by  that  code,  and  to  extend  the  defi- 
nition to  other  acts.  The  term  ‘‘declare”  was  therefore  adopted 
expressly  with  a view  to  the  ascertaining  and  creating  of  offences 
wliich  Avere  to  be  treated  as  piracies  and  felonies  committed  on  the 
high  seas,  and  as  offences  against  the  law  of  nations.' 

The  same  necessity  for  an  authority  to  prescribe  a previous 
definition  of  the  crime  of  counterfeiting  the  securities  and  current 
coin  of  the  United  States  would  seem  to  have  been  felt ; and  it 
was  probably  intended  to  be  given  by  the  terms  “to  provide  for 
the  punishment  of”  such  counterfeiting." 

The  power  to  “ declare  ” war  had  been  reported  by  the  com- 
mittee as  a power  to  “ make  ” Avar.  There  AA^as  a very  general  ac- 
cjuiescence  in  the  propriety  of  vesting  the  AA^'ar  poAA’^er  in  the  legis- 
lature rather  than  the  executiA^e ; but  the  former  expression  AA^as 
substituted  in  place  of  the  latter,  in  order,  as  it  Avould  seem,  to 
signify  that  the  legislature  alone  were  to  determine  formally  the 
state  of  Avar,  but  that  the  executive  might  be  able  to  repel  sudden 
attacks."  The  clause  AAdiich  enables  Congress  to  grant  “ letters  of 
marque  and  reprisal  ” was  added  to  the  Avar  poAver,  at  a subse- 
quent period,  on  the  recommendation  of  a committee  to  AA^hom 
Avere  referred  sundry  propositions  introduced  by  Charles  Pinck- 
ney, of  AA^hich  this  aa’rs  one." 

In  addition  to  the  war  poAA^er,  AAdiich  would  seem  to  iuA^olve  of 
itself  the  authority  to  raise  all  the  necessary  forces  required  by 
the  exigencies  of  a Avar,  the  committee  of  detail  had  gUen  the 
separate  power  “ to  raise  armies,”  which  the  Convention  enlarged 
by  adding  the  term  to  “ support.”  " This  embraced  standing^ar- 
mies  in  time  of  peace,  and,  as  the  clause  thus  amended  AA^ould 
obviously  allow,  such  armies  might  be  enlarged  to  any  extent  and 
continued  for  any  time.  The  nature  of  the  goA^ernment,  and  the 
liberties  and  the  very  prejudices  of  the  people,  required  that  some 
check  should  be  introduced  to  prevent  an  abuse  of  this  power.  A 


* Madison,  Elliot,  V.  436,  437. 

In  the  clause  as  it  passed  the  Convention,  the  offence  of  counterfeiiing  was 
placed  with  the  other  crimes  which  Congress  was  to  “define”  and  “punish;” 
but.  on  the  revision  of  the  Constitution,  counterfeiting  was  placed  in  a separate 
clause,  under  the  term  “ to  provide  for  the  punishment  of,”  etc.  See  Art.  I.  § 8, 
clauses  6,  10.  ’ 

^ Elliot,  V.  438,  439.  * - 


* Ibid.,  440,  510,  511. 


* Ibid.,  442. 


CONSTITUTIONAL  HISTORY. 


528 

limitation  of  the  number  of  troops  that  Congress  might  keep  up  in 
time  of  peace  was  proposed,  but  it  was  rejected  by  all  the  states 
as  inexpedient  and  impracticable. ‘ Another  check,  capable  of 
being  adapted  to  the  proper  exercise  of  the  power  itself,  was  to 
be  found  in  an  idea  suggested  by  Mr.  Mason,  of  preventing  a per- 
petual revenue.^  The  application  of  this  principle  to  the  jmwer 
of  raising  and  supporting  armies  would  furnish  a salutary  limita- 
tion, by  requiring  the  appropriations  for  this  purpose  to  pass  fre- 
quently under  the  review  of  the  representatives  of  the  people, 
without  embarrassing  the  exercise  of  the  power  itself.  Accord- 
ingly, the  clause  now  in  the  Constitution,  which  restricts  the  ap- 
propriation of  money  to  the  support  of  the  army  to  a term  not 
longer  than  two  years,  was  added  to  the  power  of  raising  and 
supporting  armies.' 

Authority  to  provide  and  maintain  a navy  ” was  unanimously 
agreed  as  the  most  convenient  definition  of  the  power,  and  to  this 
was  added,  from  the  Articles  of  Confederation,  the  power  ‘‘  to 
make  rules  for  the  government  and  regulation  of  the  land  and 
naval  forces.” ' 

The  next  subject  which  required  consideration  was  the  power 
of  the  general  government  over  the  militia  of  the  states.  There 
were  few  subjects  dealt  with  by  the  framers  of  the  Constitution 
exceeding  this  in  magnitude,  in  importance,  and  delicacy.  It  in- 
volved not  only  the  relations  of  the  general  government  to  the 
states  and  the  people  of  the  states,  but  the  question  whether  and 
how  far  the  whole  effective  force  of  the  nation  could  be  employed 
for  national  purposes  and  directed  to  the  accomplishment  of  ob- 
jects of  national  concern.  The  mode  in  which  this  question  should 
be  settled  would  determine,  in  a great  degree,  and  for  all  time, 
Avhether  the  national  power  was  to  depend,  for  the  discharge  of 
its  various  duties  in  peace  and  in  war,  upon  standing  armies,  or 
whether  it  could  also  employ  and  rely  upon  that  great  reservation 
of  force  that  exists  in  all  countries  accustomed  to  enroll  and  train 
their  private  citizens  to  the  use  of  arms. 

The  American  Eevolution  had  displayed  nothing  more  con- 
spicuously than  the  fact  that,  while  the  militia  of  the  states  were 
in  general  neither  deficient  in  personal  courage  nor  incapable  of 

- Ibid.,  440. 

* Elliot,  V.  443. 


1 Elliot,  V.  443. 

® Elliot,  V.  510,  511.  Constitution,  Avt.  I.  § 8,  clause  12. 


POWER  OYER  THE  MILITIA. 


52(> 

being  nuule  soldiers,  they  were  inedicient  and  unreliable  as  troops. 
One  of  the  principal  reasons  for  tliis  Avas  that,  when  called  into 
the  field  in  tlie  service  of  the  federal  power,  the  different  corps  of 
the  several  states  looked  up  to  their  own  local  government  as  their 
sovereign  ; and  being  amenable  to  no  law  but  that  of  their  own 
state,  they  Avere  frequently  indisposed  to  recognize  any  other  au- 
thority. l)Ut  a far  more  powerful  cause  of  their  inefficiency  lay 
in  the  fact  that  they  Avere  not  disciplined  or  organized  or  armed 
upon  any  uniform  sj^stem.  A regiment  of  militia  draAAm  from 
XeAA'  Hampshire  Avas  a A^ery  different  body  from  one  drawn  from 
^N'cav  York,  or  Pennsyh^ania,  or  Isew  Jersey,  or  South  Carolina. 
The  consequence  Avas  that,,  when  these  different  forces  AA^ere 
broimbt  to  act  together,  there  ay  ere  often  found  in  the  same  cam- 
paign,  and  sometimes  in  the  same  engagement,  portions  of  them 
in  a A^ery  respectable  state  of  discipline  and  equipment,  and  others 
in  no  state  of  discipline  or  equipment  at  all. 

The  necessity,  therefore,  for  a uniform  system  of  disciplining 
and  arming  the  militia  AA^as  a thing  Avell  ascertained  and  under- 
stood at  the  time  of  the  formation  of  the  Constitution.  But  the 
control  of  this  Avhole  subject  AA^as  a part  of  the  soA^ereignty  of 
each  state,  not  likely  to  be  surrendered  without  great  jealousy 
and  distrust ; and  one  of  the  most  delicate  of  the  tasks  imposed 
upon  the  Convention  AA^as  that  of  determining  hoAV  far  and  for 
AAdiat  purposes  the  people  of  the  several  states  should  be  asked  to 
confer  upon  the  general  goA^ernment  this  very  important  part  of 
their  political  sovereignty.  One  thing,  hoAvever,  Avas  clear  : that, 
if  the  general  government  was  to  be  charged  Avith  the  duty  of 
undertaking  the  common  defence  against  an  external  enemy,  or 
of  suppressing  insurrection,  or  of  protecting  the  republican  char- 
acter of  the  state  constitutions,  it  must  either  maintain  at  all 
times  a regular  army  suitable  for  any  such  emergency,  or  it  must 
have  some  poAver  to  employ  the  militia.  The  latter,  when  com- 
pared Avith  the  resource  of  standing  armies  is,  as  Avas  said  of  the 
institution  of  chivalry,  ‘‘  the  cheap  defence  of  nations and  al- 
though no  nation  has  found,  or  Avill  be  likely  to  find  it  sufficient 
Avithout  the  maintenance  of  some  regular  troops,  the  nature  of 
the  liberties  inherent  in  the  construction  of  the  American  govern- 
ments, and  the  AAdiole  current  of  the  feelings  of  the  American 
people,  Avould  lead  them  to  the  adoption  of  a policy  that  might 
I.--3J 


CONSTITUTIONAL  HISTORY. 


530 

restrain,  rather  than  encourage,  the  growth  of  a permanent  army. 
So  far,  therefore,  it  seemed  manifest,  from  the  duties  which  were 
to  be  imposed  on  the  government  of  the  Union,  that  it  must  have 
a power  to  employ  the  militia  of  the  states ; and  this  would  of 
necessity  draw  after  it,  if  it  was  to  be  capable  of  a beneficial  ex- 
ercise, the  power  to  regulate,  to  some  extent,  their  organization, 
armament,  and  discipline. 

But  the  first  draft  of  the  Constitution,  prepared  by  the  commit- 
tee of  detail,  contained  no  express  power  on  this  subject,  except- 
ing “ to  call  forth  the  aid  of  the  militia  in  order  to  execute  the 
laws  of  the  Union,  enforce  treaties,  suppress  insurrections,  and 
repel  invasions.” ' Possibly  it  might  have  been  contended,  after 
the  Constitution  had  gone  into  operation,  that  the  general  power 
to  make  all  laws  necessary  and  proper  for  the  execution  of  the 
powers  specially  enumerated  would  enable  Congress  to  prescribe 
regulations  of  the  force  which  they  were  authorized  to  employ, 
since  the  authority  to  employ  would  seem  to  involve  the  right  to 
have  the  force  kept  in  a state  fit  to  be  employed.  But  this  would 
have  been  a remote  implication  of  power,  too  hazardous  to  be 
trusted ; and  it  at  once  occurred  to  one  of  the  wisest  and  most 
sagacious  of  the  statesmen  composing  the  Convention,  who,  though 
he°  never  signed  the  Constitution,  exercised  a great  and  salutary 
influence  in  its  preparation— Mr.  Mason  of  Virginia— that  an  ex- 
press and  unequivocal  power  of  regulating  the  militia  must  be 
conferred.  He  stated  the  obvious  truth  that,  if  the  disciplining 
of  the  militia  were  left  in  the  hands  of  the  states,  they  never 
would  concur  in  any  one  system ; and  as  it  might  be  difficult  to 
persuade  them  to  give  up  their  power  over  the  whole,  he  was  at 
first  disposed  to  adopt  the  plan  of  placing  a part  of  the  militia 
under  the  control  of  the  general  government,  as  a select  force.’ 
But  he,  as  well  as  others,  became  satisfied  that  this  plan  would 
not  produce  a uniformity  of  discipline  throughout  the  entire  mass 
of  the  militia.  The  question,  therefore,  resolved  itself  practically 
into  this— what  should  be  the  nature  and  extent  of  the  control  to 
be  given  to  the  general  government,  assuming  that  its  control 
was  to  be  applicable  to  the  entire  militia  of  the  several  states. 
This  important  question,  involved  in  several  distinct  propositions, 


Art.  VII.  § 1 of  the  first  draft.  Elliot,  V.  379. 


2 Ibid.,  440. 


PATENTS  AND  COPYRIGHTS. 


531 


was  referred  to  a grand  committee  of  the  states.*  It  was  by  tliem 
that  the  plan  Avas  digested  and  arranged  by  which  Congress  now 
lias  the  power  to  provide  for  organizing,  arming,  and  disciplining 
the  militia,  and  for  governing  such  part  of  them  as  may  be  em- 
ployed in  the  service  of  the  United  States,  reserving  to  the  states 
the  appointment  of  the  officers,  and  the  authority  of  training  the 
militia  according  to  the  discipline  prescribed  by  Congress  — a 
provision  that  Avas  adopted  by  a large  majority  of  the  states.  The 
clause  reported  by  the  committee  of  detail  Avas  also  adopted,  by 
Avhich  Congress  is  enabled  to  provide  for  calling  forth  the  militia 
to  execute  the  laws  of  the  Union,  suppress  insurrections,  and  repel 
inA^asions.' 

The  next  subject  in  the  order  of  the  report  made  by  the  com- 
mittee of  detail  Avas  that  general  clause  now  found  at  the  close 
of  the  enumeration  of  the  express  poAvers  of  Congress,  Avhich  au- 
thorizes them  “ to  make  all  laAvs  Avhich  may  be  necessary  and 
proper  for  carrying  into  execution  the  foregoing  powers,  and  all 
other  powers  vested  by  this  Constitution  in  the  gOAwnment  of 
the  United  States,  or  in  any  department  or  officer  thereof.”' 
Nothing  occurred  in  the  proceedings  on  this  provision  Avhich 
throAvs  any  particular  light  upon  its  meaning,  excepting  a propo- 
sition to  include  in  it,  expressly,  the  poAver  to  “ establish  all  of- 
fices” necessary  to  execute  the  poAA'ers  of  the  Constitution;  an^ 
addition  Avhich  was  not  made,  because  it  Avas  considered  to  be  al- 
ready implied  in  the  terms  of  the  clause." 

The  subjects  of  patents  for  useful  inventions  and  of  copyrights 
of  authors  appear  to  have  been  brought  forAvard  by  Mr.  Charles 
Pinckney.  They  gave  rise  to  no  discussion  in  the  Convention,  but 
Avere  considered  in  a grand  committee,  with  other  matters,  and 
there  is  no  account  of  the  views  Avhich  they  took  of  this  interest- 
ing branch  of  the  poAvers  of  Congress.  We  knoAv,  however,  his- 
torically, that  these  were  poAvers  not  only  possessed  by  all  the 
states,  but  exercised  by  some  of  them,  before  the  Constitution  of 
the  United  States  Avas  formed.  Some  of  the  states  had  general 
copyright  laws,  not  unlike  those  Avhich  haA^e  since  been  enacted 


^ August  18th.  Elliot,  V.  445. 

2 Constitution,  Art.  I.  § 8,  cl.  16.  Ibid.,  p.  467. 
* Constitution,  Art.  I.  § 8,  cl.  18. 


" Art.  I.  § 8,  cl.  15. 
^ Elliot,  V.  447. 


CONSTITUTIONAL  HISTORY. 


532 

by  Congress  j*  but  patents  for  useful  inventions  were  granted,  by 
special  acts  of  legislation  in  each  case.  When  the  power  to  legis- 
late on  these  subjects  was  surrendered  by  the  states  to  the  gen- 
eral government,  it  was  surrendered  as  a power  to  legislate  for 
the  purpose  of  securing  a natural  right  to  the  fruits  of  mental 
labor.  This  was  the  view  of  it  taken  in  the  previous  legislation 
of  the  states,  by  which  the  power  conferred  upon  Congress  must 
to  a large  extent  be  construed. 

Such  are  the  legislative  powers  of  Congress,  which  are  to  be 
exercised  within  the  states  themselves ; and  it  is  at  once  obvious 
that  they  constitute  a government  of  limited  authority.  The 
question  arises,  then,  wdiether  that  authority  is  anywhere  full  and 
complete,  embracing  all  the  powers  of  government  and  extending 
to  all  the  objects  of  which  it  can  take  cognizance.  It  has  already 
been  seen  that,  when  provision  was  made  for  the  future  acquisi- 
tion of  a seat  of  government,  exclusive  legislation  over  the  district 
that  might  be  acquired  for  that  purpose  was  conferred  upon  Con- 
gress.^ In  the  same  clause  the  like  authority  was  given  over  all 
places  that  might  be  purchased,  with  the  consent  of  any  state  leg- 
islature, for  the  erection  of  forts,  magazines,  arsenals,  dock-yards, 
and  other  needful  buildings.^  All  the  other  places  to  which  the 
authority  of  the  United  States  can  extend  are  included  under  the 
term  “ territories,”  which  are  out  of  the  limits  and  jurisdiction  of 
any  state.  As  this  is  a subject  which  is  intimately  connected  with 
the  power  to  admit  new  states  into  the  Union,  we  are  now  to  con- 
sider the  origin  and  history  of  the  authority  given  to  Congress  for 
that  purpose. 

In  examining  the  powers  of  Congress  contained  in  the  hrst 
article  of  the  Constitution,  the  reader  will  not  find  any  power  to 
admit  new  states  into  the  Union ; and  while  he  will  find  there  the 
full  legislative  authority  to  govern  the  District  of  Columbia  and 
certain  other  places  ceded  to  the  United  States  for  particular  pur- 
poses, of  which  I have  already  spoken,  he  will  find  no  such  au- 
thority there  conferred  in  relation  to  the  territory  which  had  be- 
come the  property  of  the  United  States  by  the  cession  of  certain 


1 See  the  statutes  of  Massachusetts  and  Connecticut,  etc.,  cited  in  Curtis  on 
Copyright,  pp.  77,  78,  79. 

2 Ante,  Chap.  XXV. 


Elliot,  V.  510,  511,  513. 


TElUilTOKIAL  ACQUISITIONS.  53;; 

of  the  states  before  and  after  the  adoption  of  the  Articles  of  Con- 
federation. If  this  power  of  legislation  exists  as  to  the  territories, 
it  is  to  he  looked  for  in  another  connection ; and  although  it  is  not 
the  s})ecial  province  of  this  work  to  discuss  (|uestions  of  construc- 
tion, it  is  proper  here  to  state  the  history  of  those  portions  of 
the  Constitution  which  relate  to  this  branch  of  the  authority  of 
Congress. 

1 have  heretofore  given  an  account  of  the  origin  of  the  North- 
western Territory,  of  its  relations  to  the  Union,  and  of  the  mode 
in  which  the  federal  Congress  had  dealt  with  it  down  to  the  time 
when  the  national  Convention  was  assembled.  From  the  sources 
there  referred  to,  and  from  others  to  which  reference  will  now  be 
made,  it  may  be  convenient  to  recapitulate  what  had  been  done 
or  attempted  by  the  Congress  of  the  Confederation. 

It  appears  that  during  the  preparation  of  the  Articles  of  Con- 
federation an  effort  was  made  to  include  in  them  a grant  of  ex- 
press power  to  the  United  States  in  Congress  to  ascertain  and  fix 
the  western  boundaries  of  the  existing  states,  and  to  lay  out  the 
territory  beyond  the  boundaries  that  were  to  be  thus  ascertained 
into  new  states.  This  effort  totally  failed.  It  was  founded  upon 
the  idea  that  the  land  beyond  the  rightful  boundaries  of  the  old 
states  was  already,  or  would  by  the  proposed  grant  of  power  to 
ascertain  those  boundaries  become,  the  common  property  of  the 
Union.  But  the  states  which  then  claimed  an  uncertain  exten- 
sion westward  from  their  actual  settlements  were  not  prepared 
for  such  an  admission  or  such  a grant ; and,  accordingly,  the  Arti- 
cles of  Confederation,  which  were  framed  in  17Y7  and  took  effect  in 
1781,  contained  no  express  power  to  deal  with  landed  property  of 
the  United  States,  and  no  provision  which  could  safely  be  construed 
into  a power  to  form  and  admit  new  states  out  of  then  unoccupied 
lands  anywhere  upon  the  continent.  Still,  the  articles  were  suc- 
cessively ratified  by  some  of  the  states,  and  finally  became  estab- 
lished, in  the  express  contemplation  that  the  United  States  should 
be  made  the  proprietor  of  such  lands  by  the  cession  of  the  states 
which  claimed  to  hold  them.  In  order  to  procure  such  cessions, 
as  the  means  of  inducing  a unanimous  accession  to  the  Confeder- 
acy, the  Congress,  in  1780,  passed  a resolve,  in  which  they  prom- 
ised to  dispose  of  the  lands  for  the  common  benefit  of  the  United 
States,  to  settle  and  form  them  into  distinct  republican  states,  and 


534 


CONSTITUTIONAL  HISTORY. 


to  admit  such  states  into  the  Union  on  an  equal  footing  with  its 
present  members/  The  great  cession  by  Virginia,  made  in  1784, 
was  immediately  followed  by  another  resolve,  for  the  regulation 
of  the  territory  thus  acquired. 

This  resolve,  as  originally  reported  by  Mr.  Jefferson,  embraced 
a plan  for  the  organization  of  temporary  governments  in  certain 
states  which  it  undertook  to  describe  and  lay  out  in  the  western 
territory,  and  for  the  admission  of  those  states  into  the  Union. 
In  one  particular,  also,  it  undertook,  as  it  was  first  reported,  to  reg- 
ulate the  personal  rights  or  relations  of  the  settlers  by  providing 
that,  after  the  year  1800,  slavery,  or  involuntary  servitude  except 
for  crime,  should  not  exist  in  any  of  the  states  to  be  formed  in 
the  territory.  But  this  clause  was  stricken  out  before  the  resolve 
was  passed,  and  its  removal  left  the  measure  a mere  provision 
for  the  political  organization  of  temporary  and  permanent  gov- 
ernments of  states,  and  for  the  admission  of  such  states  into  the 
Union.  So  far  as  personal  rights  or  relations  were  involved  in 
it,  the  settlers  were  authorized  to  adopt,  for  a temporary  gov- 
ernment, the  constitution  and  laws  of  any  one  of  the  original 
states,  but  the  laws  were  to  be  subject  to  alteration  by  their 
ordinary  legislature.  The  conditions  of  their  admission  into  the 
Union  referred  solely  to  their  political  relations  to  the  United 
States,  or  to  the  rights  of  the  latter  as  the  proprietor  of  the  un- 
granted lands. 

In  about  a year  from  the  passage  of  this  measure  introduced  by 
Mr.  Jefferson,  and  after  he  had  gone  on  his  mission  to  France,  an 
effort  was  made  by  Mr.  King  to  legislate  on  the  subject  of  the 
immediate  and  perpetual  exclusion  of  slavery  from  the  states 
described  in  Mr.  Jefferson’s  resolve.  Mr.  King’s  proposition  was 
referred  to  a committee,  but  it  does  not  appear  that  it  was  ever 
acted  upon.^  The  cessions  of  Massachusetts  and  Connecticut  fol- 
lowed, in  1785  and  1786.  Within  two  years  from  this  period,  such 
had  been  the  rapidity  of  emigration  and  settlement,  and  so  incon- 
venient had  become  the  plan  of  1784,  that  Congress  felt  obliged 
to  legislate  anew  on  the  whole  subject  of  the  Northwestern  Terri- 


1 Resolve  of  October  10th,  1780.  Journals,  VI.  325. 
^ Resolve  of  April  23d,  1784.  Journals,  IX.  153. 

3 March  IGth,  1785.  Journals,  X.  79. 


TEIUIITOIIIAL  ACQUISITIONS. 


535 


tory,  and  ])roceeded  to  frame  and  adopt  the  Ordinance  of  July 
13th,  1787.  This  instrument  not  oid}^  undertook  to  make  ])olitical 
organizations  and  to  ])rovide  for  the  admission  of  new  states  into 
the  Union,  but  it  also  dealt  directly  with  the  rights  of  individuals. 
Its  exclusion  of  slavery  from  the  territory  is  well  known  as  one  of 
its  fundamental  articles,  not  subject  to  alteration  by  the  ])eople  of 
the  territory  or  their  legislature.' 

The  power  of  Congress  to  deal  Avith  the  admission  of  new  states 
was  not  only  denied  at  the  time,  but  its  alleged  Avant  of  such  jmwer 
was  one  of  the  principal  reasons  Avhicli  Avere  said  to  require  a revis- 
ion of  the  federal  system.  It  does  not  appear  that  the  subject  of 
legislation  on  the  rights  or  condition  of  persons  attracted  particular 
attention ; nor  do  Ave  know,  from  anything  that  has  come  doAvn  to 
us,  that  the  clause  relating  to  slavery  Avas  stricken  from  Mr.  Jef- 
ferson’s resol\"e  in  1784  upon  the  special  ground  of  a Avant  of  con- 
stitutional poAver  to  legislate  on  such  a question.  But  Mr.  Jeffer- 
son has  himself  informed  us  that  a majority  of  the  states  in  Con- 
gress Avould  not  consent  to  construe  the  Articles  of  Confederation 
as  if  they  had  reserA^ed  to  nine  states  in  Congress  power  to  admit 
ncAv  states  into  the  Union  from  the  territorial  possessions  of  the 
United  States ; and  that  they  so  shaped  his  measure  as  to  leaA'e 
the  question  of  power  and  the  rule  for  voting  to  be  determined 
Avhen  a neAv  state  formed  in  the  territory  should  apply  for  ad- 
mission. It  seems,  also,  that  although  the  poAver  to  frame  terri- 
torial governments,  to  organize  states  and  admit  them  into  the 
Union,  Avas  assumed  in  the  Ordinance  of  1787,  the  Congress  of 
the  Confederation  never  acted  upon  the  poAver  so  far  as  to  admit 
a state.''  Finally,  Ave  are  told  by  Mr.  Madison,  in  the  Federalist, 
that  all  that  had  been  done  in  the  ordinance  by  the  Congress  of 
the  Confederation,  including  the  sale  of  lands,  the  organization  of 
governments,  and  the  prescribing  of  conditions  of  admission  into 
the  Union,  had  been  done  AAuthout  the  least  color  of  constitutional 
authority  ” ' — an  assertion  which,  AA^hether  justifiable  or  not,  shows 


^ See  tlie  note  on  the  authorship  of  the  Ordinance  of  1787,  in  the  Appendix 
to  this  volume, 

“ See  the  proceedings  concerning  Kentuck}^,  in  1788.  Journals,  XIII.  16,  33, 
51,  52,  55. 

^ The  Federalist,  No.  38. 


CONSTITUTIONAL  HISTORY. 


53G 


that  the  power  of  legislation  was  hy  some  persons  strenuously 
denied.’ 

With  regard  to  the  powers  of  Congress,  under  the  Confedera- 
tion, to  erect  new  states  in  the  hlorthwestern  Territory,  and  to 
admit  them  into  the  Union,  the  truth  seems  to  be  this . There  is 
no  part  of  the  Articles  of  Confederation  which  can  be  said  to  con- 
fer such  a power;  and,  in  fact,  when  the  articles  were  fiamed 
the  Union,  although  it  then  existed  by  an  imperfect  bond,  not 
only  possessed  no  such  territory,  but  it  did  not  then  appear  likely 
to  become  the  proprietor  of  lands  claimed  by  certain  of  the  states 
as  the  successors  of  the  crowm  of  Great  Britain,  and  lying  within 
wdiat  they  regarded  as  their  original  chartered  limits.  The  refusal 
of  those  s*^tates  to  allow  the  United  States  to  determine  their  bound- 
aries made  it  unnecessary  to  provide  for  the  exercise  of  authoiity 
over  a public  domain.  But  in  the  interval  between  the  prejiara- 
tion  of  the  articles  and  their  final  ratification  a great  change  took 
place  in  the  position  of  the  Union.  It  wms  found  that  certain  of 
the  smaller  states  would  not  become  parties  to  the  Confederation 
if  the  great  states  w^ere  to  persist  in  their  refusal  to  cede  to  the 
Union  their  claims  to  the  unoccupied  w^estern  lands  ; and  although 
the  states  wdiich  thus  held  themselves  back  for  a long  time  from 
the  ratification  of  the  articles  finally  adopted  them  before  the 
cessions  of  western  territory  wmre  made,  they  did  so  upon  the 
most  solemn  assertion  that  they  expected  and  confided  in  a fut- 
ure relinquishment  of  their  claims  by  the  other  states.  Those 
just  expectations  were  fulfilled.  By  the  acts  of  cession  and  by 
the  proceedings  of  Congress  wTiich  invited  them,  the  United  States 
not  only  became  the  proprietors  of  a great  public  domain,  but  they 
received  that  domain  upon  the  express  trust  that  its  lands  should 
be  disposed  of  for  the  common  benefit,  and  that  the  country  should 
be  settled  and  formed  into  republican  states,  and  that  those  states 


‘ The  passage  quoted  from  Mr.  Jefferson,  ante,  also  shows  that  strong  doubts 
were  felt  in  Congress,  in  1784,  respeeting  their  power  to  admit  new  states 
formed  out  of  unoccupied  territory.  Indeed,  the  whole  of  the  proceedings  upon 
Mr.  Jefferson’s  measure  of  April  23d,  1784,  show  that  the  powers  ot  Congress  over 
the  territory  that  had  been  acquired  under  the  cession  of  Virginia  were  very 
variously  regarded  by  the  different  delegates.  See  Journals,  IX.  138-laG.  I hc 
state  of  South  Carolina  voted  against  the  resolve  on  its  final  passage,  am  a tei 
it  had  been  modified  to  meet  some  of  the  objections  raised. 


TEUIUTORIAL  ACQUISITIONS. 


537 


should  be  admitted  into  the  Union.  In  these  conveyances,  made 
and  accepted  upon  these  trusts,  there  was  a unanimous  acquies- 
cence by  the  states. 

AVhile,  tliereforc,  in  the  formal  instrument  under  which  the 
Congress  was  organized,  and  by  winch  the  United  States  became 
a corporate  body,  there  was  no  article  which  looked  to  the  admis- 
sion of  new  states  into  that  body,  formed  out  of  territory  thus 
acquired,  and  no  power  was  conferred  to  dispose  of  such  lands  or 
govern  such  territory,  there  were,  outside  of  that  instrument,  and 
closely  collateral  to  it,  certain  great  compacts  between  the  states, 
arising  out  of  deeds  of  cession  and  the  formal  guarantees  by  which 
those  cessions  had  been  invited,  and  with  which  they  had  been 
received,  which  proceeded  as  if  there  were  a competent  authority 
in  the  United  States  in  Congress  to  provide  for  the  formation  of 
the  states  contemplated,  and  for  their  admission  into  the  Union. 
Strictly  speaking,  however,  there  was  no  such  authority.  It  was 
to  be  gathered,  if  at  all,  from  public  acts  and  general  acquiescence, 
and  could  not  be  found  in  the  instrument  that  formed  the  charter 
and  established  the  powers  of  the  Congress.  It  was  an  authority, 
therefore,  liable  to  be  doubted  and  denied ; it  was  one  for  the  exer- 
cise of  which  the  Congress  was  neither  well  fitted  nor  well  situat- 
ed ; and  it  was  moreover  so  delicate,  so  extensive,  and  so  different 
from  all  the  other  powers  and  duties  of  the  government,  as  to 
make  it  eminently  necessary  to  have  it  expressly  stated  and  con- 
ferred in  the  instrument  under  which  all  the  other  functions  of 
the  government  were  to  be  exercised/ 

^ I tliink  we  are  to  understand  Mr.  Madison’s  assertion  in  the  Federalist — 
that  what  had  been  done  by  Congress  in  relation  to  the  Northwestern  Territory 
was  without  constitutional  authority — to  mean  that  it  had  been  done  without 
the  authority  of  any  proper  constitutional  provision.  Mr.  Madison  himself,  be- 
ing a member  of  Congress  in  1783,  voted  for  the  acceptance  of  a report,  by  the 
adoption  of  which  Congress  settled  the  conditions  on  which  the  cession  of  Vir- 
ginia was  to  be  received  by  the  United  States.  These  conditions  embraced  tlie 
whole  of  the  three  fundamental  points,  that  the  territory  should  be  held  and  dis- 
posed of  for  the  common  benefit  of  the  United  States,  that  it  should  be  divided 
into  states,  and  that  those  states  should  be  admitted  into  the  Union.  So  that 
Mr.  Madison  was  a party  to  the  arrangement  by  which  Congress  undertook  to 
hold  out  these  promises  to  the  states.  (Journals  of  Congress  for  September  13th, 
1783,  VIII.  355-359.)  But  he  was  not  a member  of  Congress  in  1784,  when  Mr. 
Jefferson’s  measure  was  adopted;  and  although  he  was  a member  in  1787,  when 


538 


CONSTITUTIONAL  HISTORY. 


Such  was  the  state  of  things  at  the  period*  of  the  formation  of 
the  Constitution ; and  as  we  are  to  look  fpr  the  germ  of  every 
power  embraced  in  that  instrument  in  some  stage  of  the  proceed- 
ings which  took  place  in  tlie  course  of  its  preparation,  it  is  impor- 
tant at  once  to  resort  to  the  first  suggestion  of  any  authority  over 
these  subjects.  In  doing  so  we  are  to  remember  that  the  United 
States  had  accepted  cessions  of  the  Northwestern  Territory  im- 
pressed with  two  distinct  trusts  first,  that  the  country  should  be 
settled  and  formed  into  distinct  republican  states,  which  should 
be  admitted  into  the  Union;  secondly,  that  the  lands  should  be 
disposed  of  for  the  common  benefit  of  all  the  states. 

Accordingly  we  find  in  the  plan  of  government  presented  by 
Governor  Eandolph  at  the  opening  of  the  Convention  a resolution 
declaring  that  provision  ought  to  be  made  for  the  admission  of 
states  lawfully  arising  within  the  limits  of  the  United  States, 
whether  from  a voluntary  junction  of  government  and  territory 
or  otherwise,  with  the  consent  of  a number  of  voices  in  the  na- 
tional legislature  less  than  the  whole.”  ^ This  resolution  remained 
the  same  in  phraseology  and  in  purpose  through  all  the  stages  to 
which  the  several  propositions  that  formed  the  outline  of  the  new 
government  Avere  subjected,  down  to  the  time  when  they  Avere 
sent  to  the  committee  of  detail  for  the  purpose  of  having  the 
Constitution  draAvn  out.  Looking  to  the  manifest  Avant  of  power 
in  the  Confederation  to  admit  neAV  states  into  the  Union ; to  the 
probability  that  Vermont,  Kentucky,  Tennessee  (then  called  Frank- 
lin), and  Maine— none  of  Avhich  Avere  embraced  in  any  cessions 
that  had  then  been  made  to  the  United  States— might  become  sep- 
arate states ; and  to  the  prospective  legislation  of  the  Ordinance 
of  1787  concerning  the  admission  of  states  that  Avere  to  be  formed 


the  ordinance  was  adopted,  be  was  at  that  time  in  attendance  upon  the  nadmial 
Convention,  and  consequently  never  voted  upon  the  ordinance.  His  paiticipa- 
tion  in  the  proceedings  of  the  Convention,  by  which  the  necessary  power  was 
created,  shows  his  sense  of  its  necessity. 

’ See  especially  the  cession  by  Virginia,  of  March  1st,  1784.  Journals  of  Con- 
gress, IX.  67.  Cession  by  Massachusetts,  April  19th,  1785.  Journals,  X.  128. 
Cession  by  Connecticut,  September  13th,  1786.  Journals,  XL  221.  Also  the  re- 
solve of  Congress  passed,  in  anticipation  of  these  cessions,  October  10th,  1780. 
Journals  VI.  325. 

' Resolution  10.  Madison,  Elliot,  V.  128. 


TEllKlTOllIAL  ACQUISITIONS. 


539 


in  the  territory  northwest  of  the  Ohio,  which  lind  been  ceded  to 
the  Union,  it  seems  quite  certain  tluit  the  purpose  of  the  resolu- 
tion was  to  supply  a power  to  admit  new  states,  whether  formed 
from  the  territory  of  one  of  the  existing*  states,  or  from  territory 
that  had  become  the  exclusive  property  of  the  United  States.  The 
i*esolution  contained,  however,  no  positive  restriction  which  would 
require  the  assent  of  any  existing  state  to  the  separation  of  a part 
of  its  territory ; but  as  the  states  to  be  admitted  were  to  be  those 
“lawfully  arising,”  it  is  apparent  that  the  original  intention  was 
that  no  present  state  should  be  dismembered  Avithout  its  consent. 
But  in  order  to  make  this  the  more  certain,  the  committee  of  de- 
tail, in  the  article  in  which  they  carried  out  the  resolution,  gave 
elfect  to  its  proAusions  in  these  Avords : “ NeAv  states  laAATully  con- 
stituted or  established  Avithin  the  limits  of  the  United  States  may 
be  admitted,  by  the  legislature,  into  this  government ; but  to  such 
admission  the  consent  of  tAvo  thirds  of  the  members  present  in 
each  house  shall  be  necessary.  If  a neAv  state  shall  arise  within 
the  limits  of  any  of  the  present  states,  the  consent  of  the  legisla- 
tures of  such  states  shall  be  also  necessary  to  its  admission.  If  the 
admission  be  consented  to,  the  neAv  states  shall  be  admitted  on 
the  same  terms  Avith  the  original  states.  But  the  legislature  may 
make  conditions  Avith  the  neAv  states  concerning  the  public  debt 
AAdiich  shall  be  then  subsisting.”  ’ 

In  the  first  draft  of  the  Constitution,  therefore,  there  Avas  con- 
tained a qualified  power  to  admit  neAV  states,  Avhether  arising 
within  the  limits  of  any  of  the  old  states,  or  Avithin  the  territory 
of  the  United  States.  But  in  this  proposition  there  Avas  a great 
omission ; for  although  the  states  to  be  admitted  Avere  to  be  those 
laAvfully  arising,  and  such  a state  might  be  formed  out  of  the  ter- 
ritory of  an  existing  state  by  the  legislative  poAver  of  the  latter, 
yet  it  Avas  not  ascertained  hoAv  a state  Avas  “ laAvfully  to  arise  ” in 
the  territory  of  the  United  States.  ]^or  Avas  there,  at  present, 
any  proAusion  introduced  into  the  Constitution  by  which  Congress 
could  dispose  of  the  soil  of  the  national  domain.  These  as  Avell  as 
other  omissions  at  once  attracted  the  attention  of  Mr.  Madison, 
Avho,  as  Ave  have  seen,  held  the  opinion  that  the  entire  legislation 
of  the  old  Congress  in  reference  to  the  IS’orthAvestern  Territory 


’ Art.  XVII.  of  the  draft  prepared  by  the  committee  of  detail.  Elliot,  V.  381. 


540 


CONSTITUTIONAL  HISTORY. 


was  without  constitutional  authority.  Before  the  article  which 
embraced  the  admission  of  new  states  was  reached,  he  moved  the 
following  among  other  powers  : ’ 'Ho  dispose  of  the  unappropriated 
lands  of  the  United  States and  “to  institute  temporary  govern- 
ments for  new  states  arising  therein.”  These  propositions  were 
referred  to  the  committee  of  detail,  hut  before  any  action  upon 
them  the  article  previously  reported  by  that  committee  was 
reached  and  taken  up,  and  there  ensued  upon  it  a course  of  pro- 
ceeding which  resulted  in  the  provisions  that  now  stand  in  the 
third  section  of  the  fourth  article  of  the  Constitution.^ 

The  first  alteration  made  in  the  article  reported  by  the  com- 
mittee was  to  strike  out  the  clause  which  declared  that  the  new 
states  should  be  admitted  on  an  equal  footing  with  the  old  ones. 
The  reason  assigned  for  this  change  was,  that  the  legislature  ought 
not  to  be  tied  down  to  such  an  admission,  as  it  might  throw  the 
balance  of  power  into  the  Western  States.^  The  next  modification 
was  to  strike  out  the  clause  which  required  a vote  of  two  thirds 
of  the  members  present  for  the  admission  of  a state."  This  left 
the  proposed  article  a mere  grant  of  power  to  admit  new  states, 
requiring  the  consent  of  the  legislature  of  any  state  that  might  be 
dismembered,  as  well  as  the  consent  of  Congress.  An  earnest 
effort  was  then  made,  by  some  of  the  members  from  the  smaller 
states,  to  remove  this  restriction,  upon  the  ground  that  the  United 
States,  by  the  treaty  of  peace  with  England,  had  become  the  pro- 
prietor of  the  crown  lands  which  were  situated  within  the  limits 
claimed  by  some  of  the  states  that  would  be  likely  to  be  divided; 
and  it  was  urged  that  to  require  the  consent  of  Virginia,  North 
Carolina,  and  Georgia  to  the  separation  of  their  western  settle- 
ments might  give  those  states  an  improper  control  over  the  title 
of  the  United  States  to  the  vacant  lands  lying  within  the  jurisdic- 
tion claimed  by  those  states,  and  would  enable  them  to  retain  the 
jurisdiction  unjustly,  against  the  wish  of  the  settlers.  But  a large 
majority  of  the  states  refused  to  concede  a power  to  dismember  a 
state,  without  its  consent,  by  taking  away  even  its  claims  to  juris- 
diction. It  was  considered  by  them  that,  as  to  municipal  juris- 
diction over  settlements  already  made  within  limits  claimed  by 


’ August  18tli.  Elliot,  V.  439. 
3 Ibid.,  492,  493. 


2 August  29th.  Elliot,  V.  492-497. 
* Ibid.,  493. 


ADMISSION  OF  NEW  STATES. 


541 


A'irg’inia,  Xortli  Carolina,  and  Georgia,  tlie  Constitution  ouglit  not 
to  interfere,  Avitliont  the  joint  consent  of  the  settlers  and  the  state 
exercising  such  jurisdiction ; that  if  the  title  to  lands  unoccupied 
at  the  treaty  of  peace,  lying  within  the  originally  chartered  limits 
of  any  of  the  states,  was  in  dispute  between  them  and  the  United 
States,  that  controversy  Avould  be  within  the  reach  of  the  judicial 
})ower,  as  one  between  a state  and  the  United  States,  or  it  might 
be  terminated  by  a voluntary  cession  of  the  state  claim  to  the 
Union.' 

The  next  step  taken  in  the  settlement  of  this  subject  was  to 
provide  for  the  case  of  Yermont,  which  was  then  in  the  exercise 
of  an  independent  sovereignty,  although  it  was  within  the  asserted 
limits  of  New  York.  It  was  thought  proper,  in  this  particular 
case,  not  to  make  the  state  of  Yermont,  already  formed,  depend- 
ent for  her  admission  into  the  Union  on  the  consent  of  New  York. 
For  this  reason  the  words  “hereafter  formed”  were  inserted  in 
the  article  under  consideration,  and  the  word  “jurisdiction”  was 
substituted  for  “ limits.”  ^ Thus  modified,  the  article  stood  as 
follows : 

“ New  states  may  be  admitted  by  the  legislature  into  the  Union ; 
but  no  new  state  shall  be  hereafter  formed  or  erected  within  the 
jurisdiction  of  any  of  the  present  states  without  the  consent  of 
the  legislature  of  such  state,  as  well  as  of  the  general  legislature.” 

This  provision  was  quite  unsatisfactory  to  the  minoritju  They 
wished  to  have  the  Constitution  assert  a distinct  power  in  Congress 
to  erect  new  states  within,  as  well  as  without,  the  territory  claimed 
by  any  of  the  states,  and  to  admit  such  new  states  into  the  Union ; 
and  they  also  wished  for  a saving  clause  to  protect  the  title  of  the 
United  States  to  vacant  lands  ceded  by  the  treaty  of  peace.  Lu- 
ther Martin  accordingly  moved  a substitute  article,  embracing 
these  two  objects,  but  it  was  rejected.^  A clause  was  then  added 
to  the  article  pending,  which  declared  that  no  state  should  be 
formed  by  the  junction  of  two  or  more  states,  or  parts  of  states, 

^ See  the  vote  on  a proposition  moved  by  Mr.  Carroll  for  a recommitment  for 
the  purpose  of  asserting  in  the  Constitution  tlie  right  of  the  United  States  to 
the  lands  ceded  by  Great  Britain  in  the  treaty  of  peace.  New  Jersey,  Delaware, 
and  Maryland  alone  voted  for  the  recommitment.  Elliot,  V.  493,  494. 

" Elliot,  V.  495. 

® Ibid.,  496.  New  Jersey,  Delaware,  and  Maryland,  ay. 


rj42  CONSTITUTIONAL  HISTORY. 

without  the  consent  of  the  states  concerned,  as  well  as  the  con- 
sent of  Congress.  This  completed  the  substance  of  what  is  now 
the  first  clause  of  the  third  section  of  the  fourth  article  of  the 

Constitution.'  , 

Mr.  Carroll  thereupon  renewed  the  effort  to  introduce  a clause 
saving  the  rights  of  the  United  States  to  vacant  lands ; and  after 
some  modification  he  finally  submitted  it  in  these  words;  “Noth- 
ing in  this  Constitution  shall  be  construed  to  alter  the  claims  of 
the  United  States,  or  of  the  individual  states,  to  the  western  ter- 
ritory ; but  all  such  claims  shall  be  examined  into,  and  decided 
upon,  by  the  Supreme  Court  of  the  United  States.”  Before  any 
vote  was  taken  upon  this  proposition,  however,  Gouverneur  Morris 
moved  to  postpone  it,  and  brought  forward  as  a substitute  the 
very  provision  w'hich  now  forms  the  second  clause  of  the  third 
section  of  article  fourth,  which  he  presented  as  follows : “ The 
leo-islature  shall  have  power  to  dispose  of,  and  make  all  needful 
rules  and  regulations  respecting,  the  territory  or  other  property 
belonging  to  the  United  States ; and  nothing  in  this  Constitution 
contained  shall  be  so  construed  as  to  prejudice  any  claims,  either 
of  the  United  States  or  of  any  particular  state.”  This  provision 
was  adopted,  without  any  other  dissenting  vote  than  that  of  the 

state  of  Maryland.’  . , , ■ *1, 

The  purpose  of  this  provision,  as  it  existed  at  the  time  in  the 

minds  of  the  framers  of  the  Constitution,  must  be  gathered  from 
the  whole  course  of  their  proceedings  with  respect  to  it,  and  from 
the  surrounding  facts,  which  exhibit  what  was  then,  and  what  was 
afterwards  likely  to  become,  the  situation  of  the  United  States  in 
reference  to  the  acquisition  of  territory  and  the  admission  of  new 
states  There  were,  then,  at  the  time  when  this  provision  was 
made,  four  classes  of  cases  in  the  contemplation  of  the  Conven- 
tion. The  first  consisted  of  the  Northwestern  Territory,  in  which 
the  title  to  the  soil  and  the  political  jurisdiction  were  already 
vested  in  the  United  States.  The  second  embraced  the  case  ot 


. Wlien  the  Constitution  was  finally  revised,  the  word  “hereafter”  was  left 
out  of  the  first  clause  of  the  third  section  of  article  fourth,  apiiarently  because 
the  phraseology  of  the  clause  was  sufficient  without  iM"  save  the  case  ot  Ver- 
mont, which  was  regarded  as  not  being  within  the  ‘ junsdictwn,  although 
was  witliin  the  asserted  limits,  of  tlie  state  of  New  Yoik. 

2 Elliot,  V.  496,  497. 


CESSIONS  OF  TERRITORY. 


543 


\ ermont,  which  was  tlien  exercising  an  independent  jurisdiction 
adversely  to  the  state  of  New  York,  and  the  case  of  Kentucky, 
then  a district  under  the  jurisdiction  of  Virginia ; in  botli  of  which 
the  United  States  neither  claimed  nor  sought  to  acquire  either  the 
title  to  the  vacant  lands  or  the  rights  of  political  sovereignty,  but 
which  would  both  require  to  be  received  as  new  and  separate 
states,  the  former  without  the  consent  of  New  York,  the  latter 
with  the  consent  of  Virginia.  The  third  class  comprehended  the 
cessions  which  the  United  States  in  Congress  were  then  endeavor- 
ing to  obtain  from  the  states  of  North  Carolina,  South  Carolina, 
and  Georgia,  and  in  which  were  afterwards  established  the  states 
of  Tennessee,  Mississippi,  and  Alabama.'  These  cessions,  as  it  then 
appeared,  might  or  might  not  all  be  made.  If  made,  the  title  of 
the  United  States  to  the  unoccupied  lands  would  be  complete, 
resting  both  upon  the  cessions  and  upon  the  treaty  of  peace  with 
England;  and  the  political  jurisdiction  over  the  existing  settle- 
ments, as  well  as  over  the  whole  territory,  would  be  transferred 
with  the  cessions,  subject  to  any  conditions  which  the  ceding  states 
might  annex  to  their  grants.  If  the  cessions  should  not  be  made, 
the  claims  of  the  United  States  to  the  unoccupied  lands  would 
stand  upon  the  treaty  of  peace,  and  would  require  to  be  saved  by 
some  clause  in  the  Constitution  which  should  signify  that  they 
were  not  surrendered ; while  the  claims  of  the  respective  states 
would  require  to  be  protected  in  like  manner. 

The  reader  will  now  be  prepared  to  understand  the  following 
explanation  of  the  third  section  of  the  fourth  article  of  the  Con- 
stitution. First,  with  reference  to  the  Northwestern  Territory,  the 
soil  and  jurisdiction  of  which  was  already  completely  vested  in 


' The  cession  by  bouth  Carolina  of  all  its  “right,  title,  interest,  jurisdiction, 
and  claim  to  the  “territory  or  tract  of  country’’  lying,  within  certain  northern 
and  southern  limits,  between  the  western  boundary  of  that  state  and  the  river 
Mississippi,  was  in  fact  made  and  accepted  in  Congress,  August  9th-10th,  1787, 
twenty  days  before  the  territorial  clause  was  finally  settled  in  the  Convention,' 
which  took  place  August  30th.  (Journals  of  the  Old  Congress,  XII.  129-139. 
Madison,  Elliot,  V.  494-497.)  On  the  20th  of  October  of  the  same  year  the  Con- 
giess  passed  a resolution  urging  tlie  states  of  North  Carolina  and  Georgia  to 
cede  their  western  claims.  This  request  was  not  complied  with  until  after  the 
Constitution  had  gone  into  operation.  Tlie  cession  of  North  Carolina  was  made 
February  25th,  1790  ; that  of  Georgia,  April  24th,  1802. 


CONSTITUTIONAL  HISTORY. 


5M 

the  United  States,  it  was  necessary  that  the  Constitution  should 
confer  upon  Congress  power  to  exercise  the  political  jurisdiction 
of  the  United  States,  power  to  dispose  of  the  soil,  and  power 
to  admit  new  states  that  might  he  formed  there  into  the  Union. 
Secondly,  witli  reference  to  such  cases  as  that  of  U ermont,  it  \\  as 
necessary  that  there  should  be  a power  to  admit  new  states  into 
the  Union  without  requiring  the  assent  of  any  other  state,  when 
such  new  states  were  not  formed  within  the  actual  jurisdiction  of 
any  other  state.  Thirdly,  with  reference  to  such  cases  as  that  of 
Kentucky,  which  would  be  formed  within  the  actual  jurisdiction 
of  another  state,  it  was  necessary  that  the  power  to  admit  should 
be  qualified  by  the  condition  of  the  consent  of  that  state.  Fourth- 
ly, with  reference  to  such  cessions  as  were  expected  to  be  made  by 
Korth  Carolina,  South  Carolina,  and  Georgia,  it  was  necessary  to 
provide  the  power  of  political  government,  the  power  to  admit 
into  the  Union,  and  the  power  to  dispose  of  the  soil,  if  the  cessions 
should  be  made ; and  at  the  same  time  to  save  the  claims  of  the 
United  States  and  of  the  respective  states  as  they  then  stood,  if 
the  cessions  anticipated  should  not  be  made.  None  of  these  cases, 
however,  were  specifically  mentioned  in  the  Constitution,  but  gen- 
eral provisions  were  made,  which  were  adapted  to  meet  the  several 
aspects  of  these  cases.  From  the  generality  of  these  provisions, 
it  is  held  by  some  that  the  clause  which  relates  to  “ the  territory 
or  other  property  of  the  United  States,”  was  intended  to  be  ap- 
plied to  all  cessions  of  territory  that  might  ever  be  made  to  the 
United  States,  as  well  as  to  those  which  had  been  made,  or  which 
were  then  specially  anticipated  ; while  others  give  to  the  clause  a 
much  narrower  application. 

There  now  remain  to  be  considered  the  restraints  imposed  upon 
the  exercise  of  the  powers  of  Congress,  both  within  the  states  and 
in  all  other  places  ; both  where  the  authority  of  the  United  States 
is  limited  to  certain  special  objects,  and  where  it  is  unlimited  and 
universal,  excepting  so  far  as  it  is  narrowed  by  these  constitutional 
restraints.  Some  of  them  I have  already  described,  in  tracing  the 
manner  in  which  they  were  introduced  into  the  Constitution.  We 
have  seen  how  far  the  commercial  and  revenue  powers  became 
limited  in  respect  to  the  slave-trade,  to  taxes  on  exports,  to  inefer- 
ences  between  the  ports  of  different  states,  and  to  the  levying  of 
capitation  or  other  direct  taxes.  These  restrictions  were  applica- 


EX  POST  FACTO  LAWS. 


545 


ble  to  these  special  powers.  But  otliers  were  introduced  whicli 
apply  to  the  exercise  of  all  the  powers  of  Congress,  and  are  in 
the  nature  of  limitations  upon  its  general  authority  as  a govern- 
ment. 

One  of  these  is  embraced  in  the  provision  ^Hhat  the  privilege 
of  the  writ  of  habeas  corpus  shall  not  be  suspended,  unless  when, 
in  cases  of  rebellion  or  invasion,  the  public  safety  may  require 
it.”  ‘ The  common  law  of  England,  which  recognizes  the  right  to 
the  writ  of  habeas  corpus  for  the  purpose  of  delivery  from  illegal 
imprisonment  or  restraint,  was  the  law  of  each  of  the  American 
states ; and  it  appears  from  the  proceedings  of  the  Convention  to 
have  been  the  purpose  of  this  provision  to  recognize  this  right,  in 
the  relations  of  the  people  of  the  states  to  the  general  government, 
and  to  secure  and  regulate  it.  The  choice  lay  between  a declara- 
tion of  the  existence  of  the  right,  making  it  inviolable  and  abso- 
lute, under  all  circumstances,  and  a recognition  of  its  existence  by 
a provision  which  would  admit  of  its  being  suspended  in  certain 
emergencies.  The  latter  course  was  adopted,  although  three  of 
the  states  recorded  their  votes  against  the  exception  of  cases  of 
rebellion  or  invasion."^ 

The  prohibition  upon  Congress  to  pass  bills  of  attainder,  or  ex 
post  facto  laws,  came  into  the  Constitution  at  a late  period,  and 
while  the  first  draft  of  it  was  under  consideration.  Bills  of  at- 
tainder, in  the  jurisprudence  of  the  common  law,  are  acts  of  leg- 
islation inflicting  punishment  without  a judicial  trial.  The  pro- 
posal to  prohibit  them  was  received  in  the  Convention  with  unani- 
mous assent.  With  regard  to  the  other  class  of  legislative  acts, 
described  as  ex  p>ost  facto  laws,”  there  was  some  difference  of 
opinion,  in  consequence  probably  of  different  views  of  the  extent 
of  the  term.  In  the  common  law  this  expression  included  only, 
then  and  since,  laws  which  punish  as  crimes  acts  which  were  not 
punishable  as  crimes  Avhen  they  were  committed.  Laws  of  a civil 
nature,  retrospective  in  their  operation  upon  the  civil  rights  and 
relations  of  parties,  were  not  embraced  by  this  term,  according  to 
the  definition  of  English  jurists.  But  it  is  manifest  from  what 


^ Constitution,  Art.  I.  § 9,  cl.  2. 

^ See  Elliot,  V.  484.  The  three  states  were  North  Carolina,  South  Carolina, 
and  Georgia. 

L— 35 


546  CONSTITUTIONAL  HISTORY. 

was  said  by  different  members,  that,  at  the  time  when  the  vote 
was  taken  which  introduced  this  clause  into  the  Constitution,  the 
expression  ex  post  facto  laws”  was  taken  in  its  widest  sense,  em- 
bracing all  laws  retrospective  in  their  operation.  It  was  objected, 
therefore,  that  the  prohibition  was  unnecessary,  since,  upon  the 
first  principles  of  legislation,  such  laws  are  void  of  themselves, 
without  any  constitutional  declaration  that  they  are  so.  But 
experience  had  proved  that,  whatever  might  be  the  principles  of 
civilians  respecting  such  laws,  the  state  legislatures  had  passed 
them,  and  they  had  been  acted  on.  A large  majority  of  the 
Convention  determined,  therefore,  to  place  this  restraint  upon  the 
national  legislature,  and  at  the  time  of  the  vote  I think  it  evident 
that  all  retrospective  laws,  civil  as  well  as  criminal,  were  under- 
stood to  be  included.^  But  when  the  same  restraint  came  after- 
wards to  be  imposed  upon  the  state  legislatures,  the  attention  of 
the  assembly  was  draAvn  to  the  distinction  between  criminal  laws 
and  laws  relating  to  civil  interests.  In  order  to  reach  and  control 
retrospective  laws  operating  upon  the  civil  rights  of  parties,  when 
passed  by  a state,  a special  description  was  employed  to  designate 
them,  as  laws  impairing  the  obligation  of  contracts,”  and  the 
term  ex  post  facto  laws”  was  thus  confined  to  laws  creating  and 
punishing  criminal  offences  after  the  acts  had  been  committed. 
What  is  now  the  settled  construction  of  this  term,  therefore,  is 
in  accordance  with  the  sense  in  which  it  was  finally  intended  to 
be  used  bv  the  framers  of  the  Constitution  before  the  instrument 
passed  from  their  hands. 

The  committee  of  detail  had  reported  in  their  draft  of  the 
Constitution  a clause  which  restrained  the  United  States  from 
granting  any  title  of  nobility.  The  Convention,  for  the  purpose 
of  preserving  all  officers  of  the  United  States  independent  of  ex- 
ternal influence,  added  to  this  a provision  that  no  person  holding 
an  office  of  profit  or  trust  under  the  United  States  shall,  without 
the  consent  of  Congress,  accept  of  any  present,  emolument,  office, 
or  title,  of  any  kind  whatever,  from  any  king,  prince,  or  foreign 
state.^ 

In  addition  to  the  special  powers  conferred  by  the  Constitution 


1 Elliot,  V.  4G2, 463. 

2 Ibid.,  488. 


3 Ibid.,  467.  Constitution,  Art.  I.  § 9,  cl.  8. 


PROHIBITIONS. 


54-7 


upon  the  national  government,  it  has  imposed  certain  restraints  on 
the  political  power  of  the  states,  av Inch  qualify  and  diminish  Avhat 
Avould  otherwise  be  the  unlimited  sovereignty  of  each  of  them. 
These  restraints  are  of  two  classes : a part  of  them  being  designed 
to  remove  all  obstructions  that  might  be  placed  by  state  legis- 
lation or  action  in  the  Avay  of  the  appropriate  exercise  of  the 
powers  vested  in  the  United  States,  and  a part  of  them  being  in- 
tended to  assimilate  the  nature  of  the  state  governments  to  that 
of  the  Union,  by  the  application  of  certain  maxims  or  rules  of 
public  policy.  These  restraints  may  noAV  be  briefly  examined, 
Avith  reference  to  this  classification. 

The  idea  of  imposing  special  restrictions  upon  the  poAver  of 
the  separate  states  was  not  expressly  embraced  in  the  plan  of  gov- 
ernment described  by  the  resolutions  on  which  the  committee  of 
detail  AAmre  instructed  to  prepare  the  instrument  of  government. 
Such  restrictions,  hoAvever,  Avere  not  unknown  to  the  previous 
theory  of  the  Union.  They  existed  in  the  Articles  of  Confedera- 
tion, Avhere  they  had  been  introduced  with  the  same  general  pur- 
pose of  AvithdraAving  from  the  action  of  the  states  those  objects, 
Avhich,  by  the  stipulations  of  that  instrument,  had  been  committed 
to  the  authority  of  the  United  States  in  Congress.  But  the  in- 
etflcacy  of  those  provisions  lay  in  the  fact  that  they  Avere  the 
mere  provisions  of  a theory.  The  step  noAv  proposed  to  be  taken 
Avas  to  superadd  to  the  prohibitions  themselves  the  principle  of 
their  supremacy  as  matters  of  fundamental  laAv,  and  to  enable 
the  national  judiciary  to  make  that  supremacy  effectual. 

Almost  all  the  restraints  imposed  b}^  the  Articles  of  Confeder- 
ation upon  the  states  could  be  removed  or  relaxed  by  the  consent 
of  the  Congress  to  the  doing  of  Avhat  Avas  otherAvise  prohibited. 
In  the  first  draft  of  the  Constitution,  the  committee  of  detail 
inserted  four  absolute  prohibitions,  Avhich  could  not  be  removed  by 
Congress  itself.  These  related  to  the  coining  of  money,  the  granting 
of  letters  of  marque  and  reprisal,  the  making  of  treaties,  alliances, 
and  confederations,  and  the  granting  of  titles  of  nobility.  All  the 
other  restraints  on  the  states  Avere  to  be  operative  or  inoperative, 
according  to  the  pleasure  of  Congress.'  Among  these  Avere  in- 
cluded bills  of  credit ; laws  making  other  things  than  specie  a 

' Articles  XII.,  XIII.  of  the  first  draft,  Elliot,  V.  381. 


548 


CONSTITUTIONAL  HISTORY. 


tender  in  payment  of  debts ; the  laying  of  imposts  or  duties  on 
imports ; the  keeping  of  troops  or  ships  of  war  in  time  of  peace ; 
the  entering  into  agreements  or  compacts  with  other  states,  or 
with  foreign  powers ; and  the  engaging  in  war,  when  not  invaded, 
or  in  danger  of  invasion  before  Congress  could  be  consulted.  The 
enactment  of  attainder  and  ex  ])ost  facto  laws,  and  of  laws  impair- 
ing the  obligation  of  contracts,  was  not  prohibited  at  all. 

But  when  these  various  subjects  came  to  be  regarded  more 
closely,  it  was  perceived  that  the  list  of  absolute  prohibitions  must 
be  considerably  enlarged.  Thus  the  power  of  emitting  bills  of 
credit,  which  had  been  the  fruitful  source  of  great  evils,  must 
either  be  taken  away  entirely,  or  the  contest  between  the  friends 
and  the  opponents  of  paper  money  would  be  transferred  from  the 
state  legislature  to  Congress,  if  Congress  should  be  authorized  to 
sanction  the  exercise  of  the  power.  Fears  were  entertained  that 
an  absolute  prohibition  of  paper  money  would  excite  the  strenu- 
ous opposition  of  its  partisans  against  the  Constitution ; but  it  was 
thought  best  to  take  this  opportunity  to  crush  it  entirely ; and 
accordingly  the  votes  of  all  the  states  but  two  were  given  to  a 
proposition  to  prohibit  absolutely  the  issuing  of  bills  of  credit.’ 
To  the  same  class  of  legislation  belonged  the  whole  of  that  sys- 
tem of  laws  by  which  the  states  had  made  a tender  of  certain 
other  things  than  coin  legal  satisfaction  of  a debt.  By  placing 
this'  class  of  laws  under  the  ban  of  a strict  prohibition,  not  to  be 
removed  by  the  consent  of  Congress  in  any  case,  the  mischiefs  of 
which  they  had  been  a fruitful  source  would  be  at  once  extin- 
guished. This  was  accordingly  done,  by  unanimous  consent." 

At  this  point  the  kindred  topic  of  the  obligation  of  contracts 
presented  itself  to  the  mind  of  Paifus  King,  suggested  doubtless 
by  a provision  in  the  ordinance  then  recently  passed  by  Congress 
for  the  government  of  the  Northwestern  Territory."  The  idea 
of  a special  restraint  on  legislative  power,  for  the  purpose  of  ren- 


^ Elliot,  V.  484,485. 

^ The  ordinance,  which  was  passed  Jnly  13th,  was  puhlislied  at  length  in 
“The  Pennsylvania  llei’ald,”  a newspaper  printed  at  Philadel})hia,  on  the  2otli 
of  July  (1787).  Mr.  King’s  motion  was  made  August  38th,  and  is  described  by 
Mr.  Madison  as  a motion  “ to  add,  in  tlie  words  used  in  the  ordinance  of  Con- 
gress estal)lishing  new  states,  a prohibition  on  the  states  to  intertere  in  piivatc 
contracts."’  Elliot,  V.  485. 


OBLIGATION  OF  CONTRACTS. 


549 


clering  inviolate  the  obligation  of  contracts,  appears  to  have  orig- 
inated with  Nathan  Dane,  the  author  of  that  ordinance.  It  was 
not  embraced  in  the  resolve  of  1784,  reported  by  Mr.  Jefferson, 
which  contained  the  first  scheme  adopted  by  Congress  for  the  es- 
tablishment of  new  states  in  the  Northwestern  Terri tor}^ ; and  it 
first  appears  in  our  national  legislation  in  the  ordinance  of  1787. 
Its  transfer  thence  into  the  Constitution  of  the  United  States  was 
a measure  of  obvious  expediency,  and  indeed  of  clear  necessity. 
In  the  ordinance  Congress  had  provided  a system  of  fundamental 
law,  intended  to  be  of  perpetual  obligation,  for  new  communities, 
whose  legislative  power  was  to  be  moulded  by  certain  original 
maxims  of  assumed  justice  and  right.  The  opportunity  thus  af- 
forded for  shaping  the  limits  of  political  sovereignty  according  to 
the  requirements  of  a preconceived  policy  enabled  the  framers  of 
the  ordinance  to  introduce  a limitation,  which  is  not  only  peculiar 
to  American  constitutional  law,  but  which,  like  many  features  of 
our  institutions,  grew  out  of  previous  abuses. 

In  the  old  states  of  the  Confederacy,  from  the  time  when  they 
became  self-governing  communities,  the  power  of  a mere  majority 
had  been  repeatedly  exercised  in  legislation,  without  any  regard 
to  its  effect  on  the  civil  rights  and  remedies  of  parties  to  existing 
contracts.  The  law  of  debtor  and  creditor  was  not  only  subjected 
to  constant  changes,  but  the  nature  of  the  change  depended  in 
many  of  the  states  upon  the  will  of  the  debtor  class,  who  formed 
the  governing  majority.  So  pressing  were  the  evils  thus  engen- 
dered that,  when  the  framers  of  the  ordinance  came  to  provide 
for  the  political  existence  of  communities  whose  institutions  they 
were  to  dictate,  they  determined  to  impose  an  effectual  restraint 
on  legislative  power ; and  they  accordingly  provided,  in  terms 
much  more  stringent  than  were  afterwards  employed  in  the  Con- 
stitution, that  no  law  should  have  effect  in  the  territory  which 
should  in  any  manner  whatever  interfere  with  or  affect  private 
contracts  or  engagements  previously  made.' 

The  framers  of  the  Constitution  were  not  en^a^ed  in  the  same 
work  of  creating  new  political  societies,  but  they  were  to  provide 
for  such  surrenders  by  existing  states  of  their  present  unquestioned 
legislative  authority  as  the  dictates  of  sound  policy  and  the  evils 


See  the  clause  of  tlie  ordinauce,  cited  ante,  p.  302,  note  3. 


550  CONSTITUTIONAL  HISTORY. 

of  past  experience  seemed  to  require.  When  this  subject  was  first 
brought  forward  in  the  Convention  the  restriction  was  made  to 
embrace  all  retrospective  laws  bearing  upon  contracts,  which  were 
supposed  to  be  included  in  the  term  “ ex  post  facto  laws.”  It  be- 
ing ascertained,  however,  that  the  latter  phrase  would  not,  in  its 
usual  acceptation,  extend  to  civil  cases,  it  became  necessary  to 
consider  how  such  cases  were  to  be  provided  for,  and  how  far  the 
prohibition  should  extend.  The  provision  of  the  ordinance  was 
regarded  as  too  sweeping;  no  legislature,  it  was  said,  ever  did  or 
can  altogether  avoid  some  retrospective  action  upon  the  civil  rela- 
tions of  parties  to  existing  contracts,  and  to  require  it  would  be 
extremely  inconvenient.  At  length  a description  was  found 
wdiich  embodied  the  extent  to  which  the  prohibition  could  wnth 
propriety  be  carried.  The  legislatures  of  the  states  were  re- 
strained from  passing  any  law  impairing  the  obligation  of  con- 
tracts a provision  that  has  been  found  amply  sufficient,  and 
attended  wnth  the  most  salutary  consequences,  under  the  interpre- 
tation that  has  been  given  to  it.‘ 

Bills  of  attainder  and  ex  post  facto  laws,  which  had  not  been 
included  in  the  prohibitions  on  the  states  by  the  committee  of 
detail,  were  added  by  the  Convention  to  the  list  of  positive  re- 
strictions, Avhich  was  thus  completed. 

In  the  class  of  conditional  prohibitions,  or  those  acts  which 
might  be  done  by  the  states  with  the  consent  of  Congress,  the 
committee  of  detail  had  placed  the  laying  of  “ imposts  or  duties 
on  imports.”  To  this  the  Convention  added  “ exports,”  in  order 
to  make  the  restriction  applicable  both  to  commodities  carried 
out  of  and  those  brought  into  a state.  But  tliis  provision,  as  thus 
arranged,  would  obviously  make  the  commercial  system  extremely 
complex  and  inconvenient.  On  the  one  hand,  the  power  to  lay 
duties  on  imports  had  been  conferred  upon  the  general  govern- 
ment, for  the  purposes  of  revenue,  and  to  leave  the  states  at  lib- 
erty, with  the  consent  of  Congress,  to  lay  additional  duties,  would 
subject  the  same  merchandise  to  separate  taxation  by  two  distinct 
governments.  On  the  other  hand,  if  the  states  should  be  depri\red 
of  all  power  to  lay  duties  on  exports,  they  would  have  no  means 
of  defraying  the  charges  of  inspecting  their  own  productions.  At 


Elliot,  V.  485,  488,  545,  546. 


STATE  DUTIES  ON  TONNAGE. 


551 


the  same  time  it  was  apparent  that,  under  the  guise  of  inspection 
laws,  if  such  laws  were  not  to  be  subject  to  the  revision  of  Con- 
gress, a state  situated  on  the  Atlantic,  with  convenient  seaports, 
could  lay  heavy  burdens  upon  the  productions  of  other  states  that 
might  be  obliged  to  }>ass  through  those  ports  to  foreign  markets. 
Again,  if  the  states  should  be  deprived  of  all  power  to  lay  duties 
on  imports,  they  could  not  encourage  their  own  manufactures; 
and  if  allowed  to  encourage  their  own  manufactures  by  such  state 
legislation,  it  must  operate  not  only  upon  imports  from  foreign 
countries,  but  upon  imports  from  otlier  states  of  the  Union,  which 
would  revive  all  the  evils  that  had  flowed  from  the  want  of  gen- 
eral commercial  regulations.  To  prevent  these  various  mischiefs 
the  Convention  adopted  three  distinct  safeguards.  They  pro- 
vided, first,  by  ah  exception,  that  the  states  might,  without  the 
consent  of  Congress,  lay  such  duties  and  imposts  as  “ may  be  ab- 
solutely necessary  for  executing  their  inspection  laws second, 
that  the  net  produce  of  all  duties  and  imposts  laid  by  any  state, 
Avhether  with  or  without  the  consent  of  Congress,  shall  be  for  the 
use  of  the  Treasury  of  the  United  States;  third,  that  all  such 
state  laws,  whether  passed  with  or  Avithout  the  previous  consent 
of  Congress,  shall  be  subject  to  the  revision  and  control  of  Con- 
gress.^ There  is,  therefore,  a tAvofold  remedy  against  any  oppressive 
exercise  of  the  state  power  to  lay  duties  for  purposes  of  inspection. 
The  question  Avhether  the  particular  duties  exceed  Avhat  is  abso- 
lutely necessary  for  the  execution  of  an  inspection  laAV  may  be 
made  a judicial  question ; and  in  addition  to  this,  the  law  impos- 
ing the  inspection  duty  is  at  all  times  subject  to  the  revision  and 
control  of  Congress.  Any  tendency  to  lay  duties  or  imposts  for 
purposes  of  revenue  or  protection  is  checked  by  the  requirement 
that  the  net  produce  of  all  duties  or  imposts  laid  by  any  state  on 
imports  or  exports  shall  be  paid  over  to  the  United  States,  and 
such  tendency  may  moreover  be  suppressed  by  Congress  at  any 
time,  by  the  exercise  of  its  power  of  revision  and  control. 

In  order  to  vest  the  supervision  and  control  of  the  whole  sub- 
ject of  navigation  in  Congress,  it  was  further  provided  that  no 
state,  without  the  consent  of  Congress,  shall  lay  any  duty  of  ton- 
nage. An  exception,  proposed  by  some  of  the  Maryland  and  Yir- 


Elliot,  V.  479,  484,  486,  502,  538,  539,  540,  545,  548. 


552 


CONSTITUTIONAL  HISTORY. 


ginia  members,  with  a view  to  the  situation  of  the  Chesapeake 
Bay,  illustrates  the  object  of  this  provision.  They  desired  that 
the  states  might  not  be  restrained  from  laying  duties  of  tonnage 
for  the  purpose  of  clearing  harbors  and  erecting  light-houses.” 
It  was  perhaps  capable  of  being  contended,  that,  as  the  regulation 
of  commerce  was  already  agreed  to  be  vested  in  the  general  gov- 
ernment, the  states  were  restrained  by  that  general  provision  from 
laying  tonnage  duties.  The  object  of  the  special  restriction  was 
to  make  this  point  entirely  certain ; and  the  object  of  the  pro- 
posed exception  was  to  divide  the  commercial  power,  and  to  give 
the  states  a concurrent  authority  to  regulate  tonnage  for  a par- 
ticular purpose.  But  a majority  of  the  states  considered  the  reg- 
ulation of  tonnage  an  essential  part  of  the  regulation  of  trade. 
They  adopted  the  suggestion  of  Mr.  Madison,  that  the  regulation 
of  commerce  was,  in  its  nature,  indivisible,  and  ought  to  be  wholly 
under  one  authority.  The  exception  was  accordingly  rejected.^ 
The  same  restriction,  with  the  like  qualification  of  the  consent 
of  Congress,  was  applied  to  the  keeping  of  troops  or  ships  of  war 
in  time  of  peace,  entering  into  agreements  or  compacts  with  an- 
other state  or  a foreign  power,  or  engaging  in  war,  unless  actu- 
ally invaded  or  in  such  imminent  danger  as  will  not  admit  of 
delay.^  


By  a vote  of  six  states  against  four.  Elliot,  V.  548. 


^ Elliot,  V.  548. 


CIIAPTEE  XXYIII. 


Keport  of  the  Committee  of  Detail,  continued. — Supremacy  of 

THE  National  Government. — Definition  and  Punishment  of 

Treason. 

Among  the  resolutions  sent  to  the  committee  there  were  four 
which  had  reference  to  the  supremacy  of  the  government  of  the 
United  States.  They  declared  that  it  ought  to  consist  of  a su- 
preme legislative,  executive,  and  judiciary  ; that  its  laws  and  trea- 
ties should  he  the  supreme  law  of  the  several  states,  so  far  as  they 
related  to  the  states  or  their  citizens  and  inhabitants,  and  that  the 
judiciaries  of  the  states  should  be  bound  by  them,  even  against 
their  own  laws ; that  the  officers  of  the  states,  as  well  as  of  the 
United  States,  should  be  bound  by  oath  to  support  the  Articles 
of  Union;  and  that  the  question  of  their  adoption  should  be  sub- 
mitted to  assemblies  of  representatives  to  be  expressly  chosen  by 
the  people  of  each  state  under  the  recommendation  of  its  legis- 
lature.' 

In  order  to  give  effect  to  these  precise  and  stringent  directions, 
the  committee  of  detail  introduced  into  their  draft  of  a constitu- 
tion a preamble  ; two  articles  asserting  and  providing  for  the  su- 
premacy of  the  national  government ; a provision  for  the  oath  of 
officers ; and  a declaration  of  the  mode  in  which  the  instrument 
was  to  be  ratified. 

The  preamble  of  the  Constitution,  as  originally  reported  by 
this  committee,  differed  materially  from  that  subsequently  framed 
and  adopted.  It  spoke  in  the  name  of  the  people  of  the  states  of 
New  Hampshire,  Massachusetts,  etc.,  who  were  said  “ to  ordain, 
declare,  and  establish  this  Constitution  for  the  government  of  our- 
selves and  our  posterity and  it  stated  no  special  motives  for  its 


' These  were  the  1st,  7th,  20th,  and  21st  of  the  resolutions.  Ante,  p.  439  et 
seq.,  note. 


CONSTITUTIONAL  HISTORY. 


554 

establishment.  In  this  form  it  was  unanimously  adopted  on  the 
7th  of  August.  33ut  when,  at  a subsequent  stage,  the  instrument 
was  sent  to  another  committee  for  revision  of  its  style  and  ar- 
rangement, the  names  of  the  states  were  stricken  out  of  the  pre- 
amble, and  it  was  made  to  read  We,  the  people  of  the  United 
States.  This,  however,  did  not  change  the  meaning,  for  the  pre- 
amble, by  the  words  ^‘people  of  the  United  States,”  refers  to  the 
people  of  the  states.  The  language  thus  employed  in  the  pream- 
ble has  justly  been  considered  as  having  an  important  connection 
with  the  provisions  made  for  the  ratification  of  the  instrument 
to  which  it  was  prefixed. 

The  articles  specially  designed  to  assert  and  carry  out  the  su- 
premacy of  the  national  government,  as  they  came  from  the  com- 
mittee, embodied  the  resolutions  on  the  same  subject  which  had 
passed  the  Convention.  The  only  material  addition  consisted  in 
the  cpialification  that  the  legislative  acts  of  the  United  States, 
which  were  to  be  the  supreme  law,  were  such  as  should  be  made 
in  pursuance  of  the  Constitution.  Subsequently  the  article  was 
so  amended  as  to  make  the  Constitution,  the  laws  passed  in  pur- 
suance of  it,  and  the  treaties  of  the  United  States  the  supreme  law 
of  the  land,  binding  upon  all  judicial  officers.^ 

It  is  a remarkable  circumstance  that  this  provision  was  origi- 
nally proposed  by  a very  earnest  advocate  of  the  rights  of  the 
states  — Luther  Martin.  His  design,  howmver,  was  to  supply  a 
substitute  for  a powder  over  state  legislation,  which  had  been  em- 
braced in  the  Virginia  plan,  and  which  was  to  be  exercised  through 
a negative  by  the  national  legislature  upon  all  laws  of  the  states 
contravening,  in  their  opinion,  the  Articles  of  Union  or  the  trea- 
ties subsisting  under  the  authority  of  the  Union.^  ^ The  purpose 
of  the  substitute  was  to  change  a legislative  into  a judicial  power, 
by  transferring  from  the  national  legislature  to  the  judiciary  the 
right  of  determining  whether  a state  law  supposed  to  be  in  con- 
flict with  the  Constitution,  laws,  or  treaties  of  the  Union  shoulc 
be  inoperative  or  valid.  By  extending  the  obligation  to  regard 
the  requirements  of  the  national  Constitution  and  laws  to  the 
iudo-es  of  the  state  tribunals,  their  supremacy  in  all  the  judica- 
tures of  the  country  was  secured.  This  obligation  was  enforced 


1 The  Constitution,  Art.  VI.  (See  Appendix.)  July  17tb.  Elliot,  V.  322. 


SUPREMACY  OF  THE  CONSTITUTION. 


555 


by  the  oath  or  atTirmation  to  support  the  Constitution  of  the 
United  States ; ‘ and,  as  we  shall  see  hereaftei',  lest  this  security 
should  fail,  the  final  determination  of  questions  of  this  kind  was 
drawn  to  the  national  judiciary,  even  when  they  might  have  orig- 
inated in  a state  tribunal.'* 

Closely  connected  in  purpose  with  these  careful  provisions  was 
the  mode  in  which  the  Constitution  was  to  be  ratified.  The  com- 
mittee of  detail  had  made  this  the  subject  of  certain  articles  in 
the  Constitution  itself.®  But  the  committee  of  revision  afterwards 
presented  certain  resolutions  in  the  place  of  two  of  those  articles, 
which  were  adopted  by  the  Convention  after  the  Constitution  had 
been  signed  ; leaving  in  the  instrument  itself  nothing  but  the  arti- 
cle Avhich  determined  the  number  of  states  whose  adoption  should 
be  sufficient  for  establishing  it.“  These  resolutions  pursued  sub- 
stantially the  mode  previously  agreed  upon,  of  a transmission  of 
the  instrument  to  Congress,  a recommendation  by  the  state  legis- 
latures to  the  people  to  institute  representative  assemblies  to  con- 
sider and  decide  on  its  adoption,  and  a notice  to  Congress  of  its 
action  by  each  state  assembly  so  adopting  it.  The  purpose  of 
this  form  of  proceeding,  so  far  as  it  was  connected  with  the  pri- 
mary authority  by  which  the  Constitution  was  to  be  enacted,  has 
been  already  explained." 

What  then  were  the  meaning  and  scope  of  that  supremacy 
which  the  framers  of  the  Constitution  designed  to  give  to  the 
acts  of  the  government  which  they  constructed  ? 

In  seeking  an  answer  to  this  question  it  is  necessary  to  recur, 
as  we  have  constantly  been  obliged  to  do,  to  the  nature  of  the 


' The  Constitution,  Art.  VI.  ^ Ibid.,  Art.  III.  § 2. 

Articles  XXL,  XXII.,  XXIII.  of  their  draft.  Elliot,  V.  381. 

* The  Constitution,  Art.  VII. 

Ante,  p.  431  et  seq.  The  resolutions  may  be  found  in  Elliot,  V.  541  (Sept. 
13th).  But  the  proceedings  on  them  are  not  found  in  Mr.  Madison’s  -Minutes,  or 
in  the  Journal  of  the  Convention.  The  official  record  of  their  unanimous  adop- 
tion was  laid  before  Congress  on  the  28tli  of  September,  1787,  and  it  bears  date 
September  17th.  It  recites  the  presence  in  Convention  of  all  the  states  that  at- 
tended excepting  New  York,  and  in  the  place  of  that  state  stands  “IMr.  Hamil- 
ton  from  New  York.”  This  record  precedes  the  official  letter  addressed  by  the 
Convention  to  Congress.  See  Journals  of  Congress  for  September  28th,  1787, 
Vol.  XII.  pp.  149-165. 


556  CONSTITUTIONAL  HISTORY. 

government  which  the  Constitution  was  made  to  supersede.  In 
that  system  the  experiment  had  been  tried  of  a union  of  states — 
each  possessed  of  a complete  government  of  its  own — which  was  in- 
tended to  combine  their  several  energies  for  the  common  defence 
and  the  promotion  of  the  general  welfare.  But  this  combined 
will  of  distinct  communities,  expressed  through  the  action  of  a 
common  agent,  was  wholly  unable  to  overcome  the  adverse  will 
of  any  of  them  expressed  by  another  and  separate  agent,  although 
the  objects  of  the  powers  bestowed  on  the  Confederacy  were  care- 
fully stated  and  sutRciently  defined  in  a public  compact.  Thus, 
for  example,  the  treaty-making  power  was  expressly  vested  in 
the  United  States  in  Congress  assembled;  but  when  a treaty  had 
been  made,  it  depended  entirely  upon  the  separate  pleasure  of 
each  state  whether  it  should  be  executed.  If  the  state  govern- 
ments did  not  see  fit  to  enforce  its  provisions  upon  their  own  citi- 
zens, or  thought  proper  to  act  against  them,  there  was  no  remedy, 
both  because  the  Congress  could  not  legislate  to  control  individu- 
als, and  because  there  was  no  department  clothed  with  authority 
to  compel  individuals  to  conform  their  conduct  to  the  requirements 
of  the  treaty,  and  to  disregard  the  opposing  will  of  the  state. 

This  defect  was  now  to  be  supplied,  by  giving  to  the  national 
authority,  not  only  theoretically  but  practically,  a supremacy  over 
the  authority  of  each  state.  But  this  was  not  to  be  done  by  an- 
nihilating the  state  governments.  The  government  of  every  state 
was  to  be  preserved ; and  so  far  as  its  original  powers  were  not 
to  be  transferred  to  the  general  government,  its  authority  over  its 
own  citizens  and  within  its  own  territory  must,  from  the  nature  of 
political  sovereignty,  be  supreme.  There  were,  therefore,  to  be 
two  supreme  powers  in  the  same  country,  operating  upon  the 
same  individuals,  and  both  possessed  of  the  general  attributes  of 
sovereignty.  In  what  way,  and  in  what  sense,  could  one  of  them 
be  made  paramount  over  the  other  ? 

It  is  manifest  that  there  cannot  be  two  supreme  powers  in  the 
/l^ame  community,  if  both  are  to  operate  upon  the  same  objects. 
IrBut  there  is  nothing  in  the  nature  of  political  sovereignty  to  pre- 
I v^ent  its  powers  from  being  distributed  among  different  agents  for 
I different  purposes.  This  is  constantly  seen  under  the  same  gov- 
l^ernment,  when  its  legislative,  executive,  and  judicial  powers  are 
^exercised  through  different  officers;  and  in  truth,  when  we  come 


SUPREMACY  OF  THE  CONSTITUTION. 


557 


to  the  lawgiving  ])ower  alone,  as  soon  as  we  separate  its  objects 
into  different  classes,  it  is  obvious  that  there  may  be  several  en- 
acting authorities,  and  yet  each  may  be  supreme  over  the  particu- 
lar subject  committed  to  it  by  the  fundamental  arrangements  of 
society.  Supreme  laws,  emanating  from  separate  authorities,  may 
and  do  act  on  different  objects  without  clashing,  or  they  may  act 
on  different  parts  of  the  same  object  with  perfect  harmony.  They 
are  inconsistent  when  they  are  aimed  at  each  other,  or  at  the  same 
indivisible  object.'  When  this  takes  place  one  or  the  other  must 
yield  ; or,  in  other  terms,  one  of  them  ceases  to  be  supreme  on  the 
particular  occasion.  It  was  the  j^urpose  of  the  framers  of  the  Con- 
stitution of  the  United  States  to  provide  a paramount  rule  that 
would  determine  the  occasions  on  which  the^  authority  of  a state 
should  cease  to  be  supreme,  leawng^thaF^  the  United  States  un- 
obstructed. Certain  conditions  were  made  necessary  to  the  oper- 
ation of  this  rule.  The  state  law  must  conflict  with  some  provis- 
ion of  the  Constitution  of  the  United  States,  or  with  a law  of  the 
United  States  enacted  in  pursuanc^of  the  constitutional  authority 
of  Congress,  or  with  a treaty  duly  m^de  by  the  authority  of  the 
Union.  The  operation  of  this  rule  constitutes  the  supremacy  of 
the  national  government.  It  was  supposed  that,  by  a careful  enu- 
meration of  the  objects  to  which  the  national  authority  was  to  ex- 
tend, there  would  be  no  uncertainty  as  to  the^ occasions  on  which 
the  rule  was  to  apply  ; and  as  all  other  objects  were  to  remain  ex- 
clusively subject  to  the  authority  of  the  states  within  their  respec- 
tive territorial  limits,  the  operation  of  the  rule  was  carefully  limit- 
ed to  those  occasions. 

The  highly  complex  character  of  a system  in  which  the  duties 
and  rights  of  the  citizen  are  thus  governed  by  distinct  sovereign- 
ties would  seem  to  render  the  administration  of  the  central  power 
surrounded  as  it  is  by  jealous  and  vigilant  local  governments — 
an  exceedingly  difficult  and  delicate  task.  Its  situation  is  with- 
out an  exact  parallel  in  any  other  country  in  the  world.  But  it 
possesses  the  means  which  no  government  of  a purely  federal  char- 
acter has  ever  enjoyed,  of  an  exact  determination  by  itself  of  its 
own  powers ; because  every  conflict  between  its  authority  and  the 


’ See  a speccli  made  by  Hamilton  in  the  Convention  of  New  York,  Works 
11.462. 


558 


CONSTITUTIONAL  HISTORY. 


authority  of  a state  may  be  made  a judicial  question,  and  as  such 
is  to  be  solved  by  the  judicial  department  of  the  nation.  This 
peculiar  device  has  enabled  the  government  of  the  United  States 
to  act  successfully  and  safely.  Without  it  each  state  must  have 
been  left  to  determine  for  itself  the  boundaries  between  its  own 
powers  and  those  of  the  Union;  and  thus  there  might  have  been 
as  many  different  determinations  on  the  same  question  as  the  num- 
ber of  the  states.  At  the  same  time  this  very  diversity  of  inter- 
pretation would  have  deprived  the  general  government  of  all  power 
to  enforce,  or  even  to  have,  an  interpretation  of  its  own.  Such  a 
confused  and  chaotic  condition  had  marked  the  entire  history  of 
the  Confederation.  It  was  terminated  with  the  existence  of  that 
political  system  by  the  establishment  of  the  rule  which  provides 
for  the  supremacy  of  the  Constitution  of  the  United  States,  and 
by  making  one  final  arbiter  of  all  questions  arising  under  it. 

By  means  of  this  skilful  arrangement  a government,  in  which 
the  singular  condition  is  found  of  separate  duties  prescribed  to  the 
citizen 'by  two  distinct  sovereignties,  has  operated  with  success. 
That  success  is  to  be  measured  not  wholly,  or  chiefly,  by  the  diver- 
sities of  opinion  on  constitutional  questions  that  may  from  time 
to  time  prevail ; nor  by  the  means,  aside  from  the  Constitution, 
that  may  sometimes  have  been  thought  of  for  counteracting  its 
declared  interpretation  ; but  by  the  practical  efflciency  with  which 
the  powers  of  the  Union  have  operated,  and  the  general  readiness 
to  acquiesce  in  the  limitations  given  to  those  powers  by  the  depart- 
ment in  which  their  construction  is  vested.  This  general  acqui- 
escence has  steadily  increased  from  the  period  when  the  govern- 
ment was  founded  until  the  present  day ; and  it  has  now  come  to 
be  well  understood  that  there  is  no  alternative  to  take  the  place 
of  a ready  submission  to  the  national  will  as  expressed  by  or  under 
the  Constitution  interpreted  by  the  proper  national  organ,  except- 
ing a resort  to  methods  that  lie  wholly  without  the  Constitution, 
and  that  would  completely  subvert  the  principles  on  which  it  was 
founded.  For  while  it  is  true  that  the  people  of  each  state  con- 
stitute the  sovereign  power  by  which  the  rights  and  duties  of  its 
inhabitants  not  involved  in  the  Constitution  of  the  United  States 
are  to  be  exclusively  governed,  it  is  equally  true  that  they  do  not 
constitute  the  whole  of  the  sovereign  power  which  governs  those 
relations  of  its  inhabitants  that  are  committed  to  the  national  leg- 


CAPACITY  OF  EXPANSION. 


islatiire.  The  framers  of  the  Constitution  resorted  to  an  enactment 
of  that  instrument  by  the  people  of  the  United  States,  and  employed 
language  which  speaks  in  their  name,  for  the  express  purpose, 
among  other  things,  of  bringing  into  action  a national  authority 
on  certain  subjects.  The  organs  of  the  general  government,  there- 
fore, are  not  the  agents  of  the  separate  will  of  the  people  of  each 
state,  for  certain  specified  purposes,  as  its  state  government  is  the 
agent  of  their  separate  will  for  all  other  purposes ; but  they  are 
the  agents  of  the  will  of  a collective  people,  of  which  the  inhabi- 
tants of  a state  are  only  a part.  That  the  will  of  the  whole  should 
not  be  defeated  by  the  will  of  a part  was  the  purpose  of  the  suprem- 
acy assigned  to  the  Constitution  of  the  United  States ; and  that 
the  rights  and  liberties  of  each  part,  not  subject  to  the  will  of  the 
Avhole,  should  not  be  invaded,  was  the  purpose  of  the  careful  enu- 
meration of  the  objects  to  which  that  supremacy  was  to  extend. 

In  this  supremacy  of  the  national  government  within  its  proper 
sphere,  and  in  the  means  which  were  devised  for  giving  it  practical 
efficiency,  we  are  to  look  for  the  chief  cause  that  has  given  to  our 
system  a capacity  of  great  territorial  extension.  It  is  a system  in 
which  a few  relations  of  the  inhabitants  of  distinct  states  are  con- 
fided to  the  care  of  a central  authority ; while,  for  the  purpose  of 
securing  the  uniform  operation  of  certain  principles  of  justice  and 
equality  throughout  the  land,  particular  restraints  are  imposed  on 
the  power  of  the  states.  With  these  exceptions,  the  several  states 
remain  free  to  pursue  such  systems  of  legislation  as,  in  their  own  > 
judgment,  will  best  promote  the  interest  and  welfare  of  their 
inhabitants.  Such  a division  of  the  political  powers  of  society 
admits  of  the  union  of  far  greater  numbers  of  people  and  com- 
munities than  could  be  provided  for  by  a single  representative 
government,  or  by  any  other  system  than  a vigorous  despotism. 
Many  of  the  wisest  of  the  statesmen  of  that  period,  as  we  now 
know,  entertained  serious  doubts  whether  the  country  embraced 
by  the  thirteen  original  states  would  not  be  too  large  for  the  suc- 
cessful operation  of  a republican  government,  having  even  so  few 
objects  committed  to  it  as  were  proposed  to  be  given  to  the  Con- 
stitution of  the  United  States.  If  those  objects  had  been  made  to 
embrace  all  the  relations  of  social  life,  it  is  extremely  probable 
that  the  original  limits  of  the  Union  would  have  far  exceeded  the 
capacities  of  a republican  and  representative  government,  even  if 


CONSTITUTIONAL  HISTORY. 


500 

the  first  difficulties  arising  from  the  differences  of  manners,  insti- 
tutions, and  local  laws  could  have  been  overcome. 

But  these  very  differences  may  be,  and  in  fact  have  been,  made 
a means  of  vast  territorial  expansion  by  the  aid  of  a principle 
which  has  been  placed  at  the  foundation  of  the  American  Union. 
Let  a number  of  communities  be  united  under  a system  which  em- 
braces the  national  relations  of  their  inhabitants,  and  commits  a 
limited  number  of  the  objects  of  legislation  to  the  central  organs 
of  a national  will,  leaving  their  local  and  domestic  concerns  to  sep- 
arate and  local  authority,  and  the  growth  of  such  a nation  may 
be  limited  only  by  its  position  on  the  surface  of  the  earth.  The 
ordinary  obstacles  arising  from  distance  and  the  physical  features 
of  the  country  may  be  at  once  overcome,  for  a large  part  of  the 
purposes  of  government,  by  this  division  of  its  authority.  The 
Wyants  and  interests  of  civilized  life,  modified  into  almost  endless 
varieties  by  climate,  by  geographical  position,  by  national  descent, 
bv  occupation,  by  hereditary  customs,  and  by  the  accidental  rela- 
tions of  different  races,  may  in  such  a state  of  things  be  governed 
by  legislation  capable  of  exact  adaptation  to  the  facts  with  which 
it  has  to  deal.  In  this  way  separate  states  under  the  republican 
form  may  be  multiplied  indefinitely. 

Uow  what  is  required  in  order  to  make  such  a multiplication 
of  distinct  states  at  the  same  time  a national  growth  is  the  opera- 
tion of  some  principle  that  will  preserve  their  national  relations  to 
the  control  of  a central  authority.  This  is  effected  by  the  suprem- 
acy of  the  Constitution  of  the  United  States,  against  which  no 
separate  state  power  can  be  exerted.  This  supremacy  secures  the 
republican  form  of  government,  the  same  general  principles  and 
maxims  of  justice,  and  the  same  limitations  between  state  and  na- 
tional authority,  throughout  all  the  particular  communities ; while, 
at  the  same  time,  it  regulates  by  the  same  system  of  legislation, 
applied  throughout  the  whole,  the  rights  and  duties  of  individuals 
that  are  committed  to  the  national  authority.  It  was  for  the  want 
of  this  supremacy  and  of  the  means  of  enforcing  it  that  the  Con- 
federation, and  all  the  other  federal  systems  of  free  government 
known  in  history,  had  failed  to  create  a powerful  and  effective 
nationality ; and  it  is  precisely  this  which  has  enabled  the  Consti- 
tution of  the  United  States  to  do  for  the  nation  what  all  other 
systems  of  free  government  had  failed  to  accomplish. 


TREASON  AGAINST  THE  UNITED  STATES.  561 

In  this  connection  it  seems  proper  to  state  tlic  origin  and  pur- 
})ose  of  that  detinition  of  treason  whicli  is  found  in  tlie  Constitu- 
tion, and  whicli  was  placed  there  in  order,  on  the  one  hand,  to 
defend  the  supremacy  of  the  national  government,  and  on  the 
other  to  guard  the  liberty  of  the  citizen  against  the  mischiefs  of 
constructive  definitions  of  that  crime.  No  instructions  had  been 
given  to  the  committee  of  detail  on  this  subject.  They,  however, 
deemed  it  necessary,  to  make  some  provision  that  would  ascertain 
what  should  constitute  treason  against  the  United  States.  They 
resorted  to  the  great  English  statute  of  the  25th  Edward  III. ; 
and  from  it  they  selected  two  of  the  offences  there  defined  as  trea-  * 
son,  which  were  alone  applicable  to  the  nature  of  the  sovereignty 
of  the  United  States.  The  statute,  among  a variety  of  other 
offences,  denominates  as  treason  the  levying  of  war  against  the 
king  in  his  realm,  and  the  adhering  to  the  king’s  enemies  in  his 
realm,  giving  them  aid  and  comfort  in  the  realm,  or  elsewhere.* 
The  levying  of  war  against  the  government,  and  the  adhering  to 
the  public  enemy,  giving  him  aid  and  comfort,  were  crimes  to 
which  the  government  of  the  United  States  would  be  as  likely  to 
be  exposed  as  any  other  sovereignty ; and  these  offences  would 
tend  directly  to  subvert  the  government  itself.  But  to  comjDass 
the  death  of  the  chief  magistrate,  to  counterfeit  the  great  seal  or 
the  coin,  or  to  kill  a judge  when  in  the  exercise  of  his  office,  how- 
ever necessary  to  be  regarded  as  treason  in  England,  were  crimes 
which  would  have  no  necessary  tendency  to  subvert  the  govern- 
ment of  the  United  States,  and  which  could  therefore  be  left  out 
of  the  definition  of  treason,  to  be  punished  according  to  the  sepa- 
rate nature  and  effects  of  each  of  them.  The  committee  accord- 
ingly provided  that  “treason  against  the  United  States  shall  con- 
sist only  in  levying  war  against  the  United  States,  or  any  of 
them ; and  in  adhering  to  the  enemies  of  the  United  States,  or 
any  of  them.” " 

But  here,  it  will  be  perceived,  two  errors  were  committed. 
The  first  was,  that  the  levying  of  war  against  a state  was  declared 
to  be  treason  against  the  United  States.  This  opened  a very  intri- 
cate question,  and  loaded  the  definition  with  embarrassment;  for 


' 4 Black  stone’s  Com.,  Book  IV.  cli.  6. 

® Art.  VI.  § 2 of  the  first  draft  of  the  Constitution.  Elliot,  V.  379. 

I.— 36 


5G2 


CONSTITUTIONAL  HISTORY. 


however  true  it  might  be,  in  some  cases,  that  an  attack  on  the  sov- 
ereignty of  a state  might  tend  to  subvert  or  endanger  the  govern- 
ment of  the  United  States,  yet  a concerted  resistance  to  the  laws 
of  a state,  which  is  one  of  the  forms  of  ‘'levying  war”  within  the 
meaning  of  that  phrase,  might  have  in  it  no  element  of  an  offence 
against  the  United  States,  and  might  have  no  tendency  to  injure 
their  sovereignty.  Besides,  if  resistance  to  the  government  of  Dj 
state  were  to  be  made  treason  against  the  United  States,  the 
offender,  as  was  well  said  by  Mr.  Madison,  might  be  subject  to 
trial  and  punishment  under  both  jurisdictions.*  In  order,  there- 
fore, to  free  the  definition  of  treason  of  all  complexity,  and  to 
leave  the  power  of  the  states  to  defend  their  respective  sovereign- 
ties without  embarrassment,  the  Convention  wisely  determined  to 
make  the  crime  of  treason  against  the  United  States  to  consist 
solely  in  acts  directed  against  the  United  States  themselves. 

The  other  error  of  the  committee  consisted  in  omitting  from 
the  definition  the  qualifying  words  of  the  statute  of  Edward  IIL, 
“ giving  them  aid  and  comfort,”  which  determine  the  meaning  of 
“adhering”  to  the  public  enemy These  words  were  added  by 
the  Convention,  and  the  crime  of  treason  against  the  United  States 
was  thus  made  to  consist  in  levying  war  against  the  United  States, 
or  in  adhering  to  their  enemies  by  the  giving  of  aid  and  comfort.** 

With  respect  to  the  nature  of  the  evidence  of  this  crime,  the 
committee  provided  that  no  person  should  be  convicted  of  treason 
unless  on  the  testimony  of  two  witnesses.  But  to  make  this  more 
definite,  it  was  provided  by  an  amendment  that  the  testimony  of 
the  two  witnesses  should  be  to  the  same  overt  act ; and  also  that 
a conviction  might  take  place  on  a confession  made  in  open  court. 
The  punishment  of  treason  was  not  prescribed  by  the  Constitu- 
tion, but  was  left  to  be  declared  by  the  Congress ; with  the  lim- 
itation, however,  that  no  attainder  of  treason  should  work  corrup- 
tion of  blood  or  forfeiture,  except  during  the  life  of  the  person 
attainted.** 

J Elliot,  V.  450. 

2 The  effect  of  these  words  is  as  if  the  statute  read  “adhering  to  the  enemy 
hj  giving  him  aid  and  comfort,”  and  not  as  if  they  were  two  separate  offences. 

^ See  the  debate,  Elliot,  V.  447-451. 

" Ibid.,  Art.  III.  § 3 of  the  Constitution. 


CHAPTEK  XXIX. 


Report  of  the  Committee  of  Detail,  continued. — Election  and 
Powers  of  the  President, 

In  describing  the  manner  in  which  the  Constitution  and  pow- 
ers of  the  Senate  were  finally  arranged,  I have  already  had  occa- 
sion to  state  that,  after  the  report  of  the  committee  of  detail 
came  in — vesting  the  appointment  of  the  president  in  the  national 
legislature,  creating  a term  of  seven  years,  and  making  the  incum- 
bent ineligible  a second  time — a direct  election  by  the  people  was 
negatived  by  a large  majority.  This  mode  of  election,  as  a means 
of  removing  the  appointment  from  the  legislature,  would  have 
been  successful,  but  it  was  inadmissible  on  other  accounts.  In  the 
first  place,  it  would  have  given  to  the  government  a character  of 
complete  consolidation,  so  far  as  the  executive  department  was 
concerned,  to  have  vested  the  election  in  the  people  of  the  United 
States  as  one  community.  In  the  second  place,  not  only  would 
the  states,  as  sovereignties,  have  been  excluded  from  representa- 
tion in  this  department,  but  the  slaveholding  states  would  have 
had  a relative  weight  in  the  election  only  in  the  proportion  of 
their  free  inhabitants.  On  the  other  hand,  to  provide  that  the 
executive  should  be  appointed  by  electors,  to  be  chosen  by  the 
people  of  the  states,  involved  the  necessity  of  prescribing  some 
rule  of  suffrage  for  the  people  of  all  the  states,  or  of  adopting  the 
existing  rules  of  the  states  themselves.  Probably  it  was  on  ac- 
count of  this  embarrassment  that  a proposition  for  electors  to  be 
chosen  in  this  mode  was  negatived,  by  a bare  majority,  soon  after 
the  vote  rejecting  a direct  election  of  the  president  by  the  people.' 
There  remained  the  alternatives  of  an  election  by  one  or  both  of 
the  houses  of  Congress,  or  by  electors  appointed  by  the  states  in  a 
certain  ratio,  or  by  electors  appointed  by  Congress.  The  diffi- 
culty of  selecting  from  these  various  modes  led  the  Convention  to 


^ August  24th.  Elliot,  V.  472, 473. 


CONSTITUTIONAL  HISTORY. 


5GL 

adhere  to  an  election  by  the  two  houses ; and  when  the  disadvan- 
tages of  this  plan,  already  described,  had  developed  the  necessity 
for  some  other  mode  of  appointment,  the  relations  betw^een  the 
Senate  and  the  executive  were,  as  we  have  seen,  sent  to  a grand 
committee,  who  devised  a scheme  for  their  adjustment. 

In  this  plan  it  was  proposed  that  each  state  should  appoint, 
in  such  manner  as  its  legislature  might  direct,  a number  of  electors 
equal  to  the  whole  number  of  senators  and  representatives  in  Con- 
gress to  which  the  state  might  be  entitled  under  the  provisions  of 
the  Constitution  already  agreed  upon.  The  advantages  of  this 
plan  wmre,  that  it  referred  the  mode  of  appointing  the  electors  to 
the  states  themselves,  so  that  they  could  adopt  a popular  election,  or 
an  election  by  their  legislatures,  as  they  might  prefer ; and  tha.t  it 
w^ould  give  to  each  state  the  same  weight  in  the  choice  of  the  presi- 
dent that  it  was  to  have  in  the  two  houses  of  Congress,  provided 
a majority  or  a plurality  of  the  electoral  votes  were  to  determine 
the  appointment.  The  committee  recommended  that  the  electors 
should  meet  in  their  respective  states,  on  the  same  day,  and  vote 
by  ballot  for  two  persons,  one  of  whom,  at  least,  should  not  be  an 
inhabitant  of  the  same  state  wdth  themselves ; and  that  the  per- 
son having  the  greatest  number  of  votes,  if  such  number  were  a 
majority  of  all  the  electoral  votes,  should  be  the  president.  To 
this  part  of  the  plan  there  was  likely  to  be  little  objection.  But 
the  mode  of  electing  the  president  in  case  of  a failure  to  concen- 
trate a majority  of  the  electoral  votes  upon  one  person,  or  in  case 
more  than  one  person  should  have  such  a majority,  was  the  most 
difficult  part  of  the  whole  scheme.  The  object  of  the  committee 
was  to  devise  a process  which  should  result  in  the  election  both 
of  a president  and  a vice-president ; and  they  proposed  to  make 
the  person  having  the  next  largest  number  of  electoral  votes  the 
vice-president.  If  two  of  the  persons  voted  for  should  have  a ma- 
jority of  all  the  votes,  and  the  same  number  of  votes,  then  the 
Senate  were  immediately  to  choose  one  of  them,  by  ballot,  as  the 
president ; if  no  person  should  have  such  a majority,  then  the  Sen- 
ate were  to  choose  the  president  by  ballot  from  the  five  highest 
on  the  list  of  candidates  returned  by  the  electors.  If  a choice  of 
the  president  had  been  effected  by  the  electoral  votes,  the  person 
having  the  next  highest  number  of  electoral  votes  was  to  be  vice- 
president  ; and  if  there  were  two  or  more  having  an  equal  nuiii- 


SECONDARY  ELECTION  OF  THE  PRESIDENT.  505 

ber  of  electoral  votes,  the  Senate  were  to  choose  one  of  them  as 
vice-])resi(lent. 

Fi*oni  the  })rocee(lings  which  took  place  upon  this  plan,  it  ap- 
pears that  what  many  of  the  framers  of  the  Constitution  most 
a})prehen(led  was  that  the  votes  in  the  electoral  bodies  would  not 
be  sutHciently  concentrated  to  effect  a choice,  from  want  of  the 
requisite  general  knowledge  of  the  persons  who  might  be  consid- 
ered in  different  parts  of  the  Union  as  fit  candidates  for  these 
high  offices ; and  consequently  that  the  election  would  be  thrown 
into  such  other  body  as  might  be  directed  to  make  it  after  a fail- 
ure in  the  action  of  the  electors.  It  is  a remarkable  proof  of 
their  wisdom  that,  although  intimations  began  to  appear  in  the 
public  prints,  as  soon  as  the  Constitution  was  published,  that 
"Washington  would  be  the  first  President  of  the  United  States — 
an  expectation  that  must,  therefore,  have  been  entertained  by  the 
members  of  the  Convention  before  they  had  finished  their  labors 
— they  were  at  no  time  under  the  influence  of  this  pleasing  antic- 
ipation.* They  kept  steadily  in  view  a state  of  things  in  which, 
from  the  absence  of  statesmen  of  national  reputation  and  influence, 
and  from  the  effect  of  local  preferences,  no  choice  would  be  made 
by  the  electors.  Hence  their  solicitude  to  provide  for  the  sec- 
ondary election  in  such  a way  as  to  admit  of  a re-election  of  the 
incumbent.  It  was  soon  found  that  between  the  president  and 
the  Senate  there  would  be  a mutual  connection  and  influence, 
which  would  be  productive  of  serious  evils,  whether  he  were  to 
be  made  eligible  or  ineligible  a second  time,  if  the  Senate  were  to 
have  the  appointment  after  the  electors  had  failed  to  make  a 
choice.  To  remedy  this,  many  of  the  members,  among  whom  was 
Hamilton,  preferred  to  let  the  highest  number  of  electoral  votes, 
whether  a majority  or  not,  appoint  the  president.  As  the  grand 
committee  had  proposed  to  reduce  the  term  of  office  from  seven 
to  four  years,  and  to  strike  out  the  clause  making  the  incumbent 
ineligible — a change  which  met  the  approbation  of  a large  major- 
ity of  the  states — it  became  still  more  necessary  to  prevent  any 
resort  to  the  Senate  for  a secondary  election.  But  an  appoint- 


The  Constitution  was  published  in  the  Pennsylvania  Journal,  Sept.  19th. 
On  the  27th  another  Philadelphia  paper  suggested,  or,  as  we  should  now  say, 
“nominated,”  General  Washington  for  the  presidency. 


56G 


CONSTITUTIONAL  HISTORY. 


ment  by  less  than  a majority  of  the  electoral  votes  presented,  on 
the  other  hand,  the  serious  objection  that  the  president  might 
owe  his  appointment  to  a minority  of  the  states.  To  preserve,  as 
far  as  possible,  a federal  character  for  the  government,  in  some  of 
its  departments,  was  justly  regarded  as  a point  of  great  impor- 
tance. One  branch  of  the  legislature  had  become  a depositary  of 
the  democratic  power  of  a majority  of  the  people  of  the  United 
States the  other  branch  was  the  representative  of  the  states  in 
their  corporate  capacities the  president  was  to  be  in  some  sense 
a third  branch  of  the  legislative  power,  by  means  of  his  limited 
control  over  the  enactment  of  laws and  it  was,  therefore,  some- 
thing more  than  a mere  question  of  convenience  whether  he 
should,  at  the  linal  stage  of  the  process,  be  elected  by  a less 
number  than  a majority  of  all  the  states.  That  part  of  the  plan 
which  proposed  to  elect  him  by  a majority  of  all  the  electoral 
votes,  giving  to  each  state  as  many  votes  as  it  was  to  have  in  both 
houses  of  Congress,  might  make  the  individual,  when  so  elected, 
theoretically  the  choice  of  a majority  of  the  people  of  the  United 
States,  although  not  necessarily  the  choice  of  a majority  of  the 
states.  But  there  was  a peculiar  feature  of  this  plan — afterwards, 
in  the  year  1804,  changed  to  a more  direct  method— by  which  the 
electors  were  required  to  return  their  votes  for  two  persons,  with- 
out designating  which  of  them  w\as  their  choice  for  president  and 
which  for  vice-president,  the  designation  being  determined  by  the 
numbers  of  votes  found  to  be  given  for  each  person.  This  method 
of  voting  increased  the  chances  of  a failure  to  choose  the  presi- 
dent by  the  electoral  votes.  It  is  not  easy  to  understand  why 
the  framers  of  the  Constitution  adhered  to  it;  although  it  is 
probable  that  its  original  design  was  to  prevent  corruption  and 
intrigue.  Whatever  its  purpose  may  have  been,  it  served  to  make 
still  more  prominent  the  expediency,  not  only  of  removing  the 
ultimate  election  from  the  Senate,  but  of  providing  some  mode  of 
conducting  that  election  by  which  an  appointment  by  a minority 
of  the  states  would  be  prevented,  when  a majority  of  the  electo- 
ral votes  had  not  united  upon  any  one  individual,  or  had  united 
upon  two. 

The  plan  which  had  been  prepared  by  the  grand  committee, 
and  which  adjusted  the  relations  between  the  executive  and  the 
Senate  respecting  appointments  and  treaties,  had  left  no  body  in 


THE  VICE-PRESIDENT. 


5GT 


the  government  so  likely  to  be  free  from  intimate  relations  with 
the  president,  and  at  the  same  time  so  capable  of  being  made  the 
instrument  of  an  election,  as  the  House  of  Representatives.  Ry 
the  fundamental  principle  on  whicli  that  body  had  been  agreed  to 
be  oiganized — in  direct  contrast  to  the  basis  of  the  Senate — its 
members  were  the  representatives  of  the  people  inhabiting  the 
several  states,  and  in  the  business  of  legislation  a majority  of  their 
votes  could  express  the  will  of  a majority  of  the  people  of  the 
United  States.  But  the  representatives  were  to  be  chosen  in  the 
separate  states;  and  nothing  was  more  easy,  therefore,  than  to 
provide  that,  in  any  other  function,  they  should  act  as  the  agents  of 
their  states,  making  the  states  themselves  the  real  parties  to  the 
act,  without  doing  any  violence  to  the  principle  on  which  they 
were  assembled  for  the  purposes  of  legislation.  Accordingly,  as 
soon  as  a transfer  of  the  ultimate  election  from  the  Senate  to  the 
House  of  Representatives  was  proposed,  the  method  of  voting  by 
states  was  adopted,  with  only  a single  dissent.'  The  establish- 
ment of  two  thirds  as  a quorum  of  the  states  for  this  purpose, 
and  the  provision  that  a majority  of  all  the  states  should  be  neces- 
sary to  a choice,  followed  naturally  as  the  proper  safeguards 
against  corruption,  and  were  adopted  unanimously. 

The  principal  office  of  the  executive  department  was  thus  pro- 
vided for ; but  the  ultimate  choice  of  the  vice-president  remained 
to  be  regulated.  This  office  was  unknown  to  the  draft  of  the 
Constitution  prepared  by  the  committee  of  detail,  and  was  sug- 
gested only  when  the  mode  of  organizing  the  executive,  and  of 
providing  for  some  of  the  separate  functions  of  the  Senate,  came 
to  be  closely  considered  together.  We  are  to  look  for  its  pur- 
poses, therefore,  in  the  provisions  specially  devised  for  the  settle- 
ment of  these  relations.  In  the  first  place,  it  was  apparent  that 
the  executive  would  be  a branch  of  the  government  that  ought 
never  to  be  vacant.  The  principle  which,  in  hereditary  monarch- 
ies, on  the  death  of  the  sovereign,  instantly  devolves  the  executive 
power  upon  him  who  stands  next  in  a fixed  order  of  succession, 
must  in  some  degree  be  imitated  in  purely  elective  governments, 
if  great  mischiefs  are  to  be  avoided.  The  difficulty  which  attends 
its  application  to  such  governments  consists  not  in  the  nature  of 


Delaware.  Elliot,  V.  519. 


CONSTITUTIONxYL  HISTORY. 


568 

tliG  principlG  itself,  but  in  finding  a number  of  public  functionaries 
who  can  be  placed  in  a certain  order  of  succession,  without  cre- 
ating mere  heirs  to  the  succession,  for  that  purpose  alone.  In 
hereditary  governments  the  members  of  a family,  in  a designated 
order,  stand  as  the  successive  recipients  of  the  executive  office; 
and  each  of  them,  until  he  reaches  the  throne,  may  have  no  other 
function  in  the  state  than  that  of  an  heir,  near  or  remote,  to  the 
crown,  and  may,  without  inconvenience  to  the  public  welfare,  oc- 
cupy that  position  alone.  But  in  elective,  and  especially  in  repub- 
lican governments,  the  succession  must  be  devolved  on  some  per- 
son already  filling  some  other  office ; for  to  designate  as  a suc- 
cessor to  the  chief  magistrate  a person  who  has  no  public  employ- 
ment, and  no  other  public  y)osition  than  that  of  an  heir-apparent, 
would  be  attended  with  many  obvious  disadvantages  in  such  a 
government. 

Fortunately  the  peculiar  construction  of  the  Senate  was  found 
to  require  a presiding  officer  who  should  not  be  a member  of  the 
body  itself.  As  each  state  was  to  be  represented  by  two  dele- 
gates, and  as  it  would  be  important  not  to  withdraw  either  of 
them  from  active  participation  in  the  business  of  the  chamber,  a 
presiding  officer  was  needed  who  would  represent  neither  of  the 
states.  By  placing  the  vice-president  of  the  United  States  in  this 
position  he  would  have  a place  of  dignity  and  importance,  would 
be  at  all  times  conversant  with  the  public  interests,  and  might 
]nss  to  the  chief  magistracy,  on  the  occurrence  of  a vacancy,  at- 
tended with  the  public  confidence  and  respect.  This  arrangement 
was  devised  by  the  grand  committee,  and  was  adopted  with  general 
consent.  It  contemplated,  also,  that  the  vice-president,  as  presi- 
dent of  the  Senate,  should  have  no  vote,  unless  upon  questions  on 
which  the  Senate  should  be  equally  divided ; and  on  account  of 
his  relation  to  this  branch  of  the  legislature,  the  ultimate  election 
of  the  vice-president,  when  the  electors  had  failed  to  appoint  him 
under  the  rule  prescribed,  was  retained  in  the  hands  of  the  Senate. 

The  rule  that  was  to  determine  when  the  vice-president  was  to 
succeed  to  the  functions  of  the  chief  magistrate  was  also  embraced 
in  the  plan  of  the  grand  committee.  It  was  apparent  that  a va- 
cancy in  the  principal  office  might  occur  by  death,  by  resignation, 
by  the  effect  of  inability  to  discharge  its  powers  and  duties,  and 
by  the  consequences  of  an  impeachment.  When  either  of  these 


INABILITY  OF  THE  PRESIDENT.  oOl) 

events  should  occur  it  was  ])rovi(Ic(l  that  the  odice  should  devolve 
on  the  vice-j)resident.  In  the  case  of  death  or  resig-iiation  of  the 
])resident  no  uncertainty  can  arise.  In  a case  of  iinpeaclmient  a 
judg’inent  of  conviction  operates  as  a removal  from  office.  But 
the  grand  committee  did  not  provide,  and  the  Constitution  does 
not  contain  any  provision  or  direction,  for  ascertaining  the  case 
of  an  inability  to  discharge  the  powers  and  duties  of  the  office. 
AVhen  such  an  inability  is  supposed  to  have  occurred,  and  is  not 
made  known  by  the  president  himself,  how  is  it  to  be  ascertained  ? 
Is  there  any  department  of  the  government  that  can,  with  or  with- 
out a provision  of  law,  proceed  to  inquire  into  the  capacity  of  the 
president,  and  to  pronounce  him  unable  to  discharge  his  powers 
and  duties?  What  is  meant  by  the  Constitution  as  inability  is  a 
case  which  does  not  fall  within  the  power  of  impeachment,  for 
that  is  confined  to  treason,  bribery,  and  other  high  crimes  and 
misdemeanors.  It  is  the  case  of  a simple  incapacity,  arising  from 
insanity,  or  ill-health,  or,  as  might  possibly  occur,  from  restraint 
of  the  person  of  the  president  by  a public  enemy.  But  in  the 
former  case  how  shadowy  are  the  lines  which  often  separate  the 
sound  mind  or  body  from  the  unsound ! Society  has  had  one 
memorable  example,  in  modern  times  and  in  a constitutional  mon- 
archy, of  the  delicacy  and  difficulty  of  such  an  inquiry ; an  in- 
stance in  which  all  the  appliances  of  science  and  all  the  fixed  rules 
of  succession  were  found  scarcel}^  sufficient  to  prevent  the  rage  of 
party  and  the  struggles  of  personal  ambition  from  putting  the 
state  in  jeopardy.’  With  us,  should  such  a calamity  ever  happen, 
there  must  be  a similar  effort  to  meet  it  as  nearly  as  possible  upon 
the  principles  of  the  Constitution,  and  consequently  there  must  be 
a similar  strain  on  the  Constitution  itself. 


^ I allude,  of  course,  to  tlie  case  of  King  George  III.,  which  had  not  hap- 
pened when  our  Constitution  was  framed.  To  ascertain  the  sanity  of  a private 
person  is  certainly  often  no  less  delicate  and  difficult  than  to  inquire  into  the 
sanity  of  a person  in  a high  public  position.  But  there  is  a legal  process  for 
determining  the  capacity  of  every  person  to  discharge  private  duties  or  to  exer- 
cise private  rights.  In  the  case  of  the  President  of  tlie  United  States  there  is 
no  mode  provided  by  the  Constitution  for  ascertaining  his  inability  to  discharge 
his  public  functions,  and  no  authority  seems  to  have  been  given  to  Congress  to 
provide  for  such  an  inquiry.  Perhaps  the  authority  could  not  have  been  given 
with  safety  and  propriety. 


570  CONSTITUTIONAL  HISTORY. 

In  order  to  make  still  further  provision  for  the  succession, 
Congress  were  authorized  to  declare  by  law  what  officer  should 
act  as  president  in  case  of  the  removal,  death,  resignation,  or 
inability  of  both  the  president  and  the  vice-president,  until 
the  disability  should  be  removed,  or  a new  president  should  be 
elected. 

The  mode  of  choosing  the  electors  was,  as  we  have  seen,  left 
to  the  legislatures  of  the  states.  Uniformity,  in  this  respect,  was 
not  essential  to  the  success  of  this  plan  for  the  appointment  of  the 
executive,  and  it  was  important  to  leave  to  the  people  of  the  states 
all  the  freedom  of  action  that  would  be  consistent  with  the  free 
working  of  the  Constitution.  But  it  was  necessary  that  the  time 
of  choosing  the  electors,  and  the  day  on  which  they  were  to  give 
their  votes,  should  be  prescribed  for  all  the  states  alike.  These 
particulars  were,. therefore,  placed  under  the  direction  of  Congress, 
with  the  single  restriction  that  the  day  of  voting  in  the  electoral 
colleges  should  be  the  same  throughout  the  United  States.  In 
order  to  make  the  electors  a distinct  and  independent  body  of  per- 
sons, appointed  for  the  sole  function  of  choosing  tlie  president  and 
vice-president,  it  was  provided  further  that  no  senator  or  repre- 
sentative, or  person  holding  an  office  of  trust  or  profit  under  the 
United  States,  shall  be  appointed  an  elector.' 

The  electors  were  required  to  meet  in  their  respective  states, 
and  'to  vote  by  ballot  for  two  persons,  one  of  whom  at  least  should 
not  be  an  inhabitant  of  the  same  state  with  themselves.  Having 
made  a list  of  all  the  persons  voted  for,  and  of  the  number  of  votes 
given  for  each,  they  were  to  sign  and  certify  it,  and  to  transmit  it 
sealed  to  the  seat  of  government  of  the  United  States,  directed  to 
the  president  of  the  Senate,  who,  in  the  presence  of  the  Senate 
and  the  House  of  Kepresentatives,  was  to  open  all  the  certificates, 
and  the  votes  were  then  to  be  counted. 

Such  was  the  method  devised  by  the  framers  of  the  Constitu- 
tion for  filling  the  executive  office.  Experience  has  required  some 
changes  to  be  made  in  it.  It  has  been  found  that  to  require  the 
electors  to  designate  the  persons  for  whom  they  vote  as  the  presi- 
dent and  vice-president,  respectively,  has  a tendency  to  secure  a 

1 This  clause  was  inserted,  by  unanimous  consent,  on  the  motion  of  Mr.  King 
and  Mr.  Gerry,  September  6th.  Elliot,  V.  515. 


SUCCESSION  TO  THE  EXECUTIVE  OFFICE.  571 

choice  by  the  electoral  votes,  and  therefore  to  prevent  the  election 
from  being  thrown  into  the. House  of  llepresentatives;  and  it  has 
also  been  deemed  expedient,  when  the  election  has  devolved  on 
the  House  of  Eepresentatives,  to  confine  the  choice  of  the  states 
to  the  three  highest  candidates  on  the  list  returned  by  the  elec- 
tors. These  changes  were  made  by  the  twelfth  of  the  amend- 
ments to  the  Constitution,  adopted  in  the  year  1804,  which  also 
provides  that  the  person  having  the  greatest  number  of  electoral 
votes  for  president  shall  be  deemed  to  be  chosen  by  the  electors, 
if  such  number  be  a majority  of  the  whole  number  of  electors 
appointed.  If  a choice  is  not  made  by  the  electors,  or  by  the 
House  of  Eepresentatives,  before  the  fourth  day  of  March  next 
following  the  election,  the  amendment  declares  that  the  vice-presi- 
dent shall  act  as  president,  “ as  in  the  case  ” (provided  by  the  Con- 
stitution) of  the  death  or  other  constitutional  disability  of  the 
president.” 

In  the  appointment  of  the  vice-president  the  amendment  has 
also  introduced  some  changes.  The  person  having  the  greatest 
number  of  the  electoral  votes  as  vice-president,  if  the  number  is  a 
majority  of  all  the  electors  appointed,  is  to  be  the  vice-president ; 
but  if  no  choice  is  thus  effected,  the  Senate  are  to  choose  the  vice- 
president  from  the  two  highest  candidates  on  the  list  returned  by 
the  electors ; but  a quorum  for  this  purpose  is  to  consist  of  two 
thirds  of  the  whole  number  of  senators,  and  a majority  of  the 
whole  number  is  made  necessary  to  a choice.  The  amendment 
further  adopts  the  same  qualifications  for  the  office  of  vice-presi- 
dent as  had  been  established  by  the  Constitution  for  the  office  of 
president.' 

Thus  it  appears,  from  an  examination  of  the  original  Constitu- 
tion and  the  amendment,  that  the  most  ample  provision  is  made 
for  filling  the  executive  office,  in  all  contingencies  but  one.  If  the 
electors  fail  to  choose  according  to  the  rule  prescribed  for  them, 
the  election  devolves  on  the  House  of  Eepresentatives.  If  that 
body  does  not  choose  a president  before  the  fourth  day  of  March 
next  ensuing,  the  office  devolves  on  the  vice-president  elect,  wheth- 
er he  has  been  chosen  by  the  electors  or  by  the  Senate.  But  if  the 
House  of  Eepresentatives  fail  to  choose  a president,  and  the  Sen- 


^ See  post,  p.  739. 


572 


CONSTITUTIONAL  HISTORY. 


ate  make  no  choice  of  a vice-president,  or  the  vice-president  elect 
dies  before  the  next  fourth  day  of  March,  the  Constitution  makes 
no  express  provision  for  filling  the  office,  nor  is  it  easy  to  discover 
in  it  how  such  a vacancy  is  to  be  met.  The  Constitution,  it  is 
true,  confers  upon  Congress  authority  to  provide  by  law  for  the 
case  of  removal,  death,  resignation,  or  inability  of  loth  the  presi- 
dent and  vice-president,  and  to  declare  what  officer  shall  then  act 
as  president ; and  it  provides  that  the  officer  so  designated  by  a 
law  of  Congress  shall  act  accordingly,  until  the  disability  be  re- 
moved or  a president  shall  be  elected.  But  there  is  every  reason 
to  believe  that  this  provision  embraces  the  case  of  a vacancy  in 
both  offices  occasioned  by  removal,  death,  resignation,  or  inability, 
not  of  the  president  and  vice-president  elect,  but  of  the  president 
and  vice-president  in  office.  It  may  be  doubted  whether  the 
framers  of  the  original  Constitution  intended  to  provide  for  a va- 
cancy in  both  offices  occasioned  by  the  failure  of  the  House  of 
Kepresentatives  to  elect  a president  and  the  death  of  the  vice- 
president  elect,  or  a non-election  of  a vice-president  by  the  Senate, 
before  the  fourth  day  of  March.  Their  plan  Avas,  in  the  first  in- 
stance, studiously  framed  for  the  purpose  of  impressing  on  the 
electors  the  duty  of  concentrating  their  votes ; and  although  they 
saw  and  provided  for  the  evident  necessity  of  an  election  of  a 
president  by  the  House  of  Kepresentatives,  when  the  electoral 
votes  had  not  produced  a choice,  they  omitted  all  express  provi- 
sion for  a failure  of  the  House  to  choose  a president,  apparently 
for  the  purpose  of  making  the  states  in  that  body  feel  the  impor- 
tance of  the  secondary  election,  and  the  duty  of  uniting  their 
votes.  This  omission  was  supplied  by  the  amendment,  which 
authorizes  the  vice-president  elect  to  act  as  president  wdien  the 
House  of  Kepresentatives  have  failed  to  choose  a president,  “ as 
in  the  case  of  the  death  or  other  constitutional  disability  of  the 
president.”  This  adoption,  for  the  case  of  a non-election  by  the 
House,  of  the  mode  of  succession  previously  established  by  the 
Constitution,  shows  that  the  authority  which  the  Constitution 
gave  to  Congress  to  declare  by  law  what  officer  shall  act  as  presi- 
dent, in  case  of  a vacancy  in  both  offices,  was  confined  to  tlie 
removal,  death,  resignation,  or  inability  of  the  president  and  vice- 
president  in  office,  and  does  not  refer  to  the  president  and  vice- 
president  elect,  whose  term  of  office  has  not  commenced. 


SALARY  OF  THE  PRESIDENT.  573 

The  committee  of  detail  made  no  ])rovision  respecting  the 
qualifications  of  the  president.  But  the  grand  committee,  to 
whom  the  construction  of  the  office  was  referred,  recommended 
the  qualifications  which  are  to  be  found  in  the  Constitution; 
namely,  that  no  person  shall  be  eligible  to  the  office  who  Avas  not 
born  a citizen  of  the  United  States,  or  was  not  a citizen  at  the 
time  of  the  adoption  of  the  Constitution,  and  avIio  had  not  at- 
tained the  age  of  thirty-five  years,  and  been  fourteen  years  a res- 
ident Avithin  the  United  States.  These  requirements  Avere  adopted 
AAith  unanimous  assent.* 

That  the  executiA^e  should  receiA’^e  a stipend,  or  pecuniary  com- 
pensation, AA'as  a point  Avhicli  bad  been  settled  in  the  earliest  stage 
of  the  proceedings,  notAvithstanding  the  grave  authority  of  Frank- 
lin, Avho  was  opposed  to  it.  The  speech  AAdiich  he  deliA^ered  on 
this  subject  Avas  based  upon  the  maxim  that  in  all  cases  of  pub- 
lic serAuce,  the  less  profit,  the  greater  honor.  He  seems  to  haA^e 
been  actuated  chiefly  by  the  fear  that  the  gOA^ernment  AA^ould  in 
time  be  resoHed  into  a monarchy;  and  he  thought  this  catas- 
trophe would  be  longer  delayed  if  the  seeds  of  contention,  faction, 
and  tumult  Avere  not  soavu  in  the  system  by  making  the  places  of 
honor  places  of  profit.  He  maintained  this  opinion  for  the  case 
eA^en  of  a plural  executive,  AA’hich  he  decidedly  advocated ; and  he 
instanced  the  example  of  AVashington,  AA"ho  had  led  the  armies  of 

lie  A olution  foi  ei^ht  years  Avithout  receiAung  the  smallest 
compensation  for  his  services,  to  proA^e  the  practicability  of  “ find- 
ing three  or  four  men,  in  all  the  United  States,  Avith  public  spirit 
enough  to  bear  sitting  in  peaceful  council  for  perhaps  an  equal 
term,  merely  to  preside  over  our  ciAul  concerns,  and  see  that  our 
laAvs  are  duly  executed.”  His  plan  Avas  treated  Avith  the  respect 
due  to  his  illustrious  character,  but  no  one  failed  to  see  that  it  ^ 
Avas  a ‘‘  Utopian  idea.”  The  example  of  Washington  was,  in  truth, 
inapplicable  to  the  question.  A patriotic  Virginia  gentleman,  of 
ample  fortune,  AA^as  called  upon,  in  the  day  of  his  country’s  greatest 
trial,  to  take  the  lead  in  a desperate  struggle  for  independence. 


’ Elliot,  V.  462,  507,  521,  522. 

He  anticipated  that  it  would  be  so  regarded.  Hamilton,  who  was  in  all 
his  views  as  unlike  Franklin  as  any  man  could  be,  seconded  the  motion,  out  of 
respect  for  the  mover. 


or 


CONSTITUTIONAL  HISTORY. 


The  nature  of  the  war,  his  own  eminence,  his  character  and  feel- 
ings, the  poverty  of  a country  which  he  foresaw  would  often  be 
unable  to  pay  even  the  common  soldier,  and  his  motives  for  em- 
barking in  the  contest,  all  united  to  make  the  idea  of  compensa- 
tion inadmissible  to  a man  whose  fortune  made  it  unnecessary. 
Such  a combination  of  circumstances  could  scarcely  ever  occur  in 
the  case  of  a chief  magistrate  of  a regular  and  established  govern- 
ment. If  an  individual  should  happen  to  be  placed  in  the  office 
who  possessed  private  means  enough  to  render  a salary  unneces- 
sary to  his  own  wants,  or  to  the  dignity  of  the  position,  the  duty 
of  "his  example  might  point  in  precisely  the  opposite  direction, 
and  make  it  expedient  that  he  should  receive  what  his  successors 
would  be  unable  to  decline.  But  the  real  question  which  the 
framers  of  the  Constitution  had  to  decide  was,  in  what  way  could 
the  office  be  constituted  so  as  to  give  the  people  of  the  United 
States  the  widest  range  of  choice  among  the  public  men  fit  to  be 
placed  in  it.  To  attach  no  salary  to  the  chief  executive  office,  m 
a republican  government,  would  practically  confine  the  office  to 
men  who  had  inherited  or  accumulated  wealth.  The  Convention 
determined  that  this  mischief  should  be  excluded.  They  adopted 
the  principle  of  compensation  for  the  office  of  chief  magistrate, 
and  when  the  committee  of  detail  came  to  give  effect  to  this  de- 
cision, they  added  the  provision  that  the  compensation  shall 
neither  be  increased  nor  diminished  during  the  period  for  which 
a president  has  been  elected.^  The  limitation  which  confines  the 
president  to  his  stated  compensation,  and  forbids  him  to  recei\e 
any  other  emolument  from  the  United  States,  or  from  any  state, 
was  subsequently  introduced,  but  not  by  unanimous  consent.^ 

The  question  whether  the  single  person  in  whom  the  executive 
power  was  to  be  vested  should  exercise  it  with  or  without  the  aid 
or  control  of  any  council  of  state  was  one  that  in  various  ways 
ran  through  the  several  stages  of  the  proceedings.  As  soon  as  it 
was  settled  that  the  executive  should  consist  of  a single  person, 
the  nature  and  degree  of  his  responsibility,  and  the  extent  to 
which  it  might  be  shared  by  or  imposed  upon  any  other  officers, 
became  matters  of  great  practical  moment,  What  was  called  at 

one  time  a council  of  revision  was  a bod}  net  from  a cabinet 


1 Elliot,  V.  380. 

* Connecticut,  New  Jen 


)elaware,  and  Nortl 


ina  voted  against  it. 


A COUNCIL  FOR  THE  PRESIDENT.  575 

council,  and  was  proposed  for  a different  purpose.  Tlie  function 
intended  for  it  by  its  advocates  related  exclusively  to  the  exer- 
cise of  the  revisionary  check  upon  legislation.  But  we  have  seen 
that  the  nature  of  this  check,  the  purposes  for  which  it  was  to  be 
established,  and  the  practical  success  with  which  it  could  be  intro- 
duced into  the  legislative  system,  required  that  the  power  and 
the  responsibility  should  rest  with  the  president  alone.  There 
remained,  however,  the  further  question  concerning  a cabinet,  or 
council  of  state ; an  advisory  body,  with  which  some  of  the  most 
important  persons  in  the  Convention  desired  to  surround  the  pres- 
ident, to  assist  him  in  the  discharge  of  his  duties,  without  the 
power  of  controlling  his  actions,  and  without  diminishing  his 
legal  responsibility.  Such  a plan  not  having  received  the  sanc- 
tion of  the  Convention,  the  draft  of  the  Constitution  reported  by 
the  committee  of  detail  of  course  contained  no  provision  for  it. 
It  was  subsequently  brought  forward,  and  received  the  recom- 
mendation of  a committee ; ’ but  the  grand  committee,  who  were 
charged  with  the  adjustment  of  the  executive  office,  substituted 
for  it  a different  provision,  Avhich  gave  the  president  power  to 
‘‘  require  the  opinion  in  writing  of  the  principal  officer  in  each  of 
the  executive  departments,  upon  any  subject  relating  to  the  duties 
of  their  respective  offices.”  The  friends  of  a councir  regarded 
this  arrangement  of  the  executive  office,  especially  with  regard  to 
the  power  of  appointment,  as  entirely  defective.^  But  the  reason 
on  which  it  was  rested  by  the  grand  committee,  and  on  which  the 
plan  of  a council  of  state  was  rejected,  was,  that  the  President  of 
the  United  States,  unlike  the  executive  in  mixed  governments  of 
the  monarchical  form,  was  to  be  personally  responsible  for  his 
official  conduct,  and  that  the  Constitution  should  do  nothing  to 
diminish  that  responsibility,  even  in  appearance.  If  it  had  not 
been  intended  to  make  the  president  liable  to  impeachment  a 
cabinet  might  have  been  useful,  and  would  certainly  have  been 
necessary,  if  there  was  to  be  any  responsibility  anywhere  for 
executive  acts.  But  a large  majority  of  the  states  preferred  to 
interpose  no  shield  between  the  president  and  a public  accusa- 
tion. He  might  derive  any  assistance  from  the  great  officers  of 


^ Elliot,  V.  446,462. 

' Mason,  Franklin,  Wilson,  Dickinson,  and  Madison. 


3 Elliot,  V.  525. 


CONSTITUTIONAL  HISTORY. 


570 

the  executive  departments  which  Congress  might  see  fit  to  estab- 
lish that  he  could  obtain  from  their  opinions  or  advice ; but  the 
powers  which  the  Constitution  was  to  confer  on  him  must  be 
exercised  by  himself,  and  every  ofiicial  act  must  be  pei formed  as 
his  own/ 

What  those  powers  were  to  be  had  not  been  fully  settled 
when  the  first  draft  of  the  Constitution  came  from  the  committee 
of  detail.  The  executive  function,  or  the  power  and  duty  of 
causing  the  laws  to  be  duly  and  faithfully  executed ; authority 
to  give  information  to  Congress  on  the  state  of  the  Union,  and  to 
recommend  measures  for  their  consideration  ; power  in  certain 
cases  to  convene  and  to  adjourn  the  t^vo  houses ; the  commission- 
ing of  all  officers,  and  the  appointing  to  office  in  cases  not  other- 
wfse  provided  for  by  the  Constitution ; the  receiving  of  ambassa- 
dors ; the  granting  of  reprieves  and  pardons ; the  chief  command 
of  the  armv  and  navy  of  the  United  States  and  of  the  militia  of 
the  several  states— were  all  provided  for.  But  the  foreign  rela- 


1 Those  who  are  not  familiar  with  the  precise  structure  of  the  American 
government  will  probably  be  surprised  to  learn  that  what  is  in  practice  some- 
times called  the  “ Cabinet”  has  no  constitutional  existence  as  a directory  body, 
or  one  that  can  decide  anything.  The  theory  of  our  government  is,  that  what 
belongs  to  the  executive  power  is  to  be  exercised  by  the  uncontrolled  will  of 
the  president.  Acting  upon  the  clause  of  the  Constitution  which  empowers 
the  president  to  call  for  the  opinions  in  writing  of  the  heads  of  departments, 
Washincrton,  the  first  president,  commenced  the  practice  of  taking  their  opin- 
ions in  Separate  consultation;  and  he  also,  upon  important  occasions,  assembled 
them  for  oral  discussion,  in  the  form  of  a council.  After  having  heard  the 
reasons  and  opinions  of  each,  he  decided  the  course  to  be  pursued.  The  sec- 
ond president,  Mr.  John  Adams,  followed  substantially  the  same  practice.  The 
third  president,  Mr.  Jefferson,  adopted  a somewhat  different  practice.  When  a 
question  occurred  of  sufficient  magnitude  to  require  the  opinions  of  all  the 
heads  of  departments,  he  called  them  together,  had  the  subject  discussed,  and 
a vote  taken,  in  which  he  counted  himself  but  as  one.  But  he  always  seems  to 
have  considered  that  he  had  the  i^ower  to  decide  against  the  opinion  of  his 
cabinet.  That  he  never,  or  rarely,  exercised  it,  was  owing  partly  to  the  unanim- 
ity in  sentiment  that  prevailed  in  his  cabinet,  and  to  his  desire  to  preserve 
that  unanimitv,  and  partly  to  his  disinclination  to  the  exercise  of  personal 
power.  When  there  were  differences  of  opinion,  he  aimed  to  produce  a unani- 
mous result  by  discussion,  and  almost  always  succeeded.  But  he  admits  that 
this  practice  made  the  executive,  in  fiict,  a directory.  Jefferson’s  Works,  V.  94, 
508,  569. 


POWER  TO  DECLARE  WAR.  577 

tions  of  the  country  were  committed  wliolly  to  the  Senate,  as 
was  also  the  appointment  of  ambassadors  and  of  judges  of  the 
Supreme  Court.  It  is  not  necessary  to  ex])lain  again  the  grounds 
on  which  the  Convention  were  finally  obliged  to  alter  this  ar- 
rangement. It  will  be  convenient,  however,  to  take  up  the  sev- 
eral powers  and  functions  of  the  executive,  and  to  describe  briefly 
the  scope  and  purpose  ultimately  given  to  each  of  them. 

In  the  plan  of  government  originally  proposed  by  Governor 
Eandolph  the  division  into  the  three  departments  of  an  execu- 
tive, a legislative,  and  a judiciary  implied,  for  the  first  of  these 
departments,  according  to  the  theory  of  all  governments  which 
are  thus  separated,  power  to  carry  into  execution  the  existing 
laws.  This  government,  however,  was  to  succeed  one  that  had 
regulated  the  affairs  of  the  Union  for  several  years,  in  which  all 
the  powers  vested  in  the  confederacy  of  the  states  were  held  and 
exercised  by  the  Congress  of  their  deputies ; and  among  those 
powers  was  that  of  declaring  war  and  making  peace.  This  func- 
tion is,  moreover,  embraced  in  the  general  powers  of  the  execu- 
tive department,  in  most  governments  in  which  there  is  a regular 
separation  of  that  department  from  the  legislative  and  the  judi- 
cial. But  it  became  apparent  at  the  very  commencement  of  the 
process  of  forming  the  Constitution  of  the  United  States  that  the 
question  whether  the  executive  should  be  intrusted  with  the 
power  of  war  and  peace  would  not  only  be  made,  but  that  the 
system  would  have  to  be  so  arranged  as  to  make  the  government, 
in  this  particular,  an  exception  to  the  general  rule.  This  Avas 
partly  owing  to  an  unwillingness  to  intrust  such  a poAA^er  to  one 
person— or  e\^en  to  a plurality  of  persons,  if  the  executive  should 
be  so  constituted.  If  to  the  general  poAvers  of  executing  the 
laws  and  of  appointing  to  office  there  were  to  be  added  the 
poAver  to  make  war  and  peace,  and  the  whole  AA^ere  to  be  A^ested 
in  a single  magistrate,  it  Avas  rightly  said  that  the  goA^ernment 
Avould  be  in  substance  an  elective  monarchy.  The  poAver  of  the 
executiA’e,  OA^er  the  external  relations  of  the  country  at  least, 
Avould  be  the  same,  in  kind  and  in  extent,  as  it  is  in  constitutional 
monarchies,  and  the  sole  difference  would  be  that  the  supreme 
magistrate  Avould  be  elective.  This  AA^as  not  intended,  and  was 
not  admissible.  Still  another  reason  for  making  the  goA'ernment 
01  the  United  States,  in  this  feature,  an  exception  to  the  general 

10  w 

. — ol 


CONSTITUTIONAL  HISTORY. 


578 

rule,  was  the  necessity  for  giving  to  the  states,  in  their  corporate 
capacities,  some  control  over  the  foreign  relations  of  the  country. 

Our  further  inquiries  concerning  this  part  of  the  powers  anti 
functions  of  the  chief  magistrate  will  only  need  to  extend  so  far 
as  to  ascertain  what  is  the  “executive  power”  which  tlie  Con- 
stitution declares  shall  be  “ vested”  in  the  president.  In  the 
resolutions,  which  at  different  stages  had  previously  passed  in  the 
Convention,  this  had  been  described  as  a “power  to  carry  into 
execution  the  national  laws;”  and  this  description  was  regarded 
as  including  such  other  powers,  not  legislative  or  judicial  in  their 
nature,  as  might  from  time  to  time  be  delegated  to  the  president 
by  Congress.'  The  committee  of  detail,  in  drafting  the  Consti- 
tution, employed  the  phrase  “ executive  power”  to  describe  what 
had  thus  been  designated  by  the  resolutions  sent  to  them  ; and  as 
the  plan  of  government  which  they  presented  proposed  to  make 
the  declaration  of  a state  of  war  a legislative  act,  the  prosecution 
of  a war,  when  declared,  was  left  to  fall  within  the  executive  du- 
ties as  part  of  the  “ executive  power.”  In  order,  moreover,  that 
the  executive  duties  might  be  still  more  clearly  defined,  the  com- 
mittee provided  that  the  president  “ shall  take  care  that  the  laws 
be  faithfully  executed,”  and  imposed  upon  him  the  same  obliga- 
tion by  the  force  of  his  oath  of  office.  The  committee  having 
been  directed  to  provide  for  the  end  in  view,  it  was  considered 
that  they  were  also  to  provide  the  means  by  which  the  end  was 
to  be  obtained.'  Accordingly  they  made  the  president  commander- 
in-chief  of  the  army  and  navy,  and  of  the  militia  of  the  states 
when  called  into  the  service  of  the  United  States.  The  president 
appears,  therefore,  to  have  been  placed  in  the  same  position  with 
reference  to  the  means  to  be  employed  in  the  discharge  of  all  his 
executive  duties,  when  force  may  in  his  judgment  be  necessary. 
The  declaration  of  a state  of  war  is  an  enactment  by  the  legisla- 
tive branch  of  the  government ; the  creation  of  laws  is  a function 
that  belongs  exclusively  to  the  same  department but  when  a law 
exists,  or  the  state  of  war  exists,  it  is  for  the  president,  by  virtue 
of  his  executive  office,  and  of  his  position  as  commander-m-ohief, 
to  employ  the  army  and  navy,  and  the  militia  actually  called  into 
the  service  of  the  United  States,  in  the  execution  of  the  law,  or 


' Elliot,  V.  141,  142. 


2 Ibid.,  343,  344. 


THE  POWER  TO  MAKE  TREATIES. 


579 


the  prosecution  of  hostilities,  in  such  a manner  as  he  may  think 
proper.' 

Closely  allied  to  the  power  of  executing  the  laws  is  that  of 
pardoning  offences,  and  relieving  against  judicial  sentences.  This 
power  was  originally  extended  by  the  committee  of  detail  to  all 
offences  against  the  United  States,  excepting  cases  of  impeach- 
ment, in  which  they  provided  that  the  pardon  of  the  president 
should  not  be  pleaded  in  bar.  This  would  have  made  the  power 
precisely  like  that  of  the  king  of  England  ; since,  by  the  English 
law,  although  the  king’s  pardon  cannot  be  pleaded  in  bar  of  an 
impeachment,  he  may,  after  conviction,  pardon  the  offender.  But 
as  it  was  intended  in*  the  Constitution  of  the  United  States  to 
limit  the  judgment  in  an  impeachment  to  a removal  from  office, 
and  to  subsequent  disqualification  for  office,  there  would  not  be 
the  same  reason  for  extending  to  it  the  executive  power  of  par- 
don that  there  is  in  England,  where  the  judgment  is  not  so  limited. 
The  Convention,  therefore,  took  from  the  president  all  power  of 
pardon  in  cases  of  impeachment,  making  them  the  sole  exception 
to  the  power.^  A strong  effort  was  indeed  made  to  establish 
another  exception  in  cases  of  treason,  upon  the  ground,  chiefly, 
that  the  criminal  might  be  the  president’s  own  instrument  in  an 
attempt  to  subvert  the  Constitution.  But  since  all  agreed  that  a 
power  of  pardon  was  as  necessary  in  cases  of  treason  as  in  all 
other  offences,  and  as  it  must  be  given  to  the  legislature,  or  to  one 
branch  of  it,  if  not  lodged  with  the  executive,  a very  large  major- 
ity of  the  states  preferred  to  place  it  in  the  hands  of  the  presi- 
dent, especially  as  he  would  be  subject  to  impeachment  for  any 
participation  in  the  guilt  of  the  party  accused." 

The  power  to  make  treaties,  which  had  been  given  to  the 


1 The  Constitution  having  vested  in  Congress  power  to  provide  for  calling 
tlie  militia  into  the  service  of  the  United  States,  to  execute  the  laws,  suppress 
insurrections,  and  repel  invasions,  the  president  cannot  call  out  the  militia  un- 
less authorized  to  do  so  by  Congress.  But  with  respect  to  the  employment  of 
the  army  and  navy  for  any  executive  purpose,  it  may  be  doubted  whether  any 
authority  from  Congress  is  necessary;  as  it  may  also  be  doubted  whether  Con- 
gress can  exercise  any  control  over  the  president  in  the  use  of  the  land  or  naval 
forces,  either  in  the  execution  of  the  laws,  or  in  the  discharge  of  any  other  ex- 
ecutive duty. 

2 Elliot,  V.  480. 


® Ibid.,  549. 


580 


CONSTITUTIONAL  HISTORY. 


Senate  by  the  committee  of  detail,  and  which  was  afterwards 
transferred  to  the  president,  to  be  exercised  with  the  advice  and 
consent  of  two  thirds  of  the  senators  present,  was  thus  modified 
on  account  of  the  changes  Avhich  the  plan  of  government  had  un- 
dergone, and  which  have  been  previously  explained.  The  power 
to  declare  war  having  been  vested  in  the  whole  legislature,  it  was 
necessary  to  provide  the  mode  in  which  a war  was  to  be  termi- 
nated. As  the  president  was  to  be  the  organ  of  communication 
with  other  governments,'  and  as  he  would  be  the  general  guar- 
dian of  the  national  interests,  the  negotiation  of  a treaty  of  peace, 
and  of  all  other  treaties,  was  necessarily  confided  to  him.  But  as 
treaties  would  not  only  involve  the  general  interests  of  the  nation, 
but  might  touch  the  particular  interests  of  individual  states,  and, 
whatev'er  their  effect,  were  to  be  part  of  the  supreme  law  of  the 
land,  it  was  necessary  to  give  to  the  senators,  as  the  direct  rep- 
resentatives of  the  states,  a concurrent  authority  with  the  presi- 
dent over  the  relations  to  be  affected  by  them.  The  rule  of  rati- 
fication suggested  by  the  committee  to  whom  this  subject  was 
last  confided  was,  that  a treaty  might  be  sanctioned  by  two  thirds 
of  the  senators  present,  but  not  by  a smaller  number.  A ques- 
tion was  made,  however,  and  much  considered,  whether  treaties 
of  peace  ought  not  to  be  subjected  to  a different  rule.  One  sug- 
gestion was,  that  the  Senate  ought  to  have  power  to  make  trea- 
ties 'of  peace  without  the  concurrence  of  the  president,  on  account 
of  his  possible  interest  in  the  continuance  -of  a Avar  from  AAdiich 
he  might  derive  poAver  and  importance.^  But  an  objection,  stren- 
uously urged,  AA^as  that,  if  the  poAA^er  to  make  a treaty  of  peace 
Avere  confided  to  the  Senate  alone,  and  a majority  or  two  thirds 
of  the  Avhole  Senate  Avere  to  be  required  to  make  such  a treaty, 
the  difficulty  of  obtaining  peace  Avould  be  so  great  that  the 
legislature  would  be  unAvilling  to  make  Avar  on  account  of  the 
fisheries,  the  navigation  of  the  Mississippi,  and  other  important 
objects  of  the  Union."  On  the  other  hand,  it  Avas  said  that  a 
majority  of  the  states  might  be  a minority  of  the  peojffe  of  the 
United  States,  and  that  the  representatives  of  a minority  of  the 

1 It  was  to  be  one  of  the  distinct  functions  of  the  president  “ to  receive 

ambassadors  and  other  public  ministers.”  ^ ^ 

2 Mr.  Madison  so  thought.  Elliot,  V.  524.  • 


APPOINTMENT  TO  OFFICES.  581 

nation  ought  not  to  liave  pou^or  to  decide  the  conditions  of 
peace. 

The  result  of  these  various  objections  was  a determination  on 
the  part  of  a large  majority  of  the  states  not  to  make  treaties  of 
})eace  an  exception  to  the  rule,  but  to  provide  a uniform  rule  for 
the  ratification  of  all  treaties.  The  rule  of  the  Confederation, 
which  had  required  the  assent  of  nine  states  in  Congress  to  every 
treaty  or  alliance,  had  been  found  to  work  great  inconvenience ; 
as  any  rule  must  do  which  should  give  to  a minority  of  states 
power  to  control  the  foreign  relations  of  the  countiy.  The  rule 
established  by  the  Constitution,  while  it  gives  to  every  state  an 
opportunity  to  be  present  and  to  vote,  requires  no  positive  quorum 
of  the  Senate  for  the  ratification  of  a treaty ; it  simply  demands 
that  the  treaty  shall  receive  the  assent  of  two  thirds  of  all  the 
members  who  may  be  present.  The  theory  of  the  Constitution 
undoubtedly  is,  that  the  president  represents  the  people  of  the 
United  States  generally,  and  the  senators  represent  their  respective 
states ; so  that,  by  the  concurrence  which  the  rule  thus  requires, 
the  necessity  for  a fixed  quorum  of  the  states  is  avoided,  and  the 
operations  of  this  function  of  the  government  are  greatly  facili- 
tated and  simplified.^  The  adoption,  also,  of  that  part  "of  the 
rule  which  provides  that  the  Senate  may  either  ''  advise  or  con- 
sent^ enables  that  body  so  far  to  initiate  a treaty  as  to  propose 
one  for  the  consideration  of  the  president— although  such  is  not 
the  general  practice. 

Having  already  described'  the  changes  which  took  from  the 
Senate  alone  the  appointment  of  the  judges  of  the  Supreme  Court 
and  ambassadors,  it  is  only  necessary  in  this  connection  to  notice 
the  manner  in  which  the  power  of  ap])ointment  to  all  offices  re- 
ceived its  final  scope  and  limitations.  The  plan  reported  by  the 
committee  of  detail  had,  as  we  have  repeatedly  seen,  vested  the 
appointment  of  ambassadors  and  judges  of  the  Supreme  Court  in 
the  Senate,  and  had  given  to  the  president  the  sole  voice  in  the 
appointment  of  all  other  officers  of  the  United  States.  The  ad- 
justment afterwards  made  gave  the  nomination  of  all  officers  to 


1 The  several  votes  taken  upon  different  aspects  of  the  rule  for  tlie  ratifica- 
tion of  treaties  make  the  theory  quite  clearly  what  is  stated  in  the  text.  See 
the  proceedings,  September  7th,  8th.  Elliot,  V.  524,  526. 


582 


CONSTITUTIONAL  HISTORY. 


the  president,  hut  required  the  advice  and  consent  of  the  Senate 
to  conqdete  an  appointment.  Two  inconveniences  were  likely  to 
he  experienced  under  this  arrangement.  Many  inferior  offices 
might  he  created,  which  it  would  he  unnecessary  and  inexpedient 
to  fill  hy  this  process  of  nomination  hy  the  president  and  confir- 
mation hy  the  Senate  ; and  vacancies  might  occur  in  all  offices, 
which  would  require  to  he  filled  while  the  Senate  was  not  in 
session.  To  obviate  these  inconveniences  the  Congress  v/ere  au- 
thorized to  vest  the  appointment  of  such  inferior  officers  as  they 
might  think  proper  in  the  president  alone,  in  the  courts  of  law, 
or  in  the  heads  of  departments ; and  power  was  given  to  the 
president  to  fill  up  all  vacancies  that  might  happen  during  the 
recess  of  the  Senate,  hy  granting  commissions  which  should 
expire  at  the  end  of  their  next  session.^  In  order  to  restrain  the 
president  from  practically  creating  offices  hy  the  power  of  ap- 
pointment, his  power  was  limited  to  offices  created  hy  law,  and 
to  those  specially  enumerated  in  the  Constitution." 

In  addition  to  these  powers  the  committee  of  detail  had  pro- 
vided for  certain  direct  relations,  of  a special  nature,  between  the 
president  and  the  Congress.  One  of  these  was  to  consist  in  giving 
to  the  Congress  from  time  to  time  information  of  the  state  of  the 
Union,  and  in  recommending  to  their  consideration  such  measures 
as  he  shall  judge  necessary  and  expedient.  The  other  was  em- 
braced in  the  power  to  convene  the  two  houses  on  extraordinary 

’ This  power  embraces  of  course  only  those  offices  tlie  appointment  to  which 
is  vested  in  the  president  and  Senate. 

2 The  Constitution  (Art.  II.  § 2)  seems  to  contemplate  ambassadors,  other 
public  ministers  and  consuls,  and  judges  of  the  Supreme  Court,  as  officers  to 
exist  under  the  Constitution,  whether  provision  is  or  is  not  made  bylaw  for  tlieir 
appointment  and  functions.  It  is  made  the  imperative  duty  of  tlie  president 
to  nominate,  and  with  the  consent  of  the  Senate  to  appoint  them.  Hence  it 
has  been  supposed  that  the  president  can  appoint  a foreign  minister  without 
waiting  to  have  Ids  particular  office  regulated  or  established  by  law ; and  as  the 
president  conducts  the  foreign  intercourse  of  the  country,  he  could  prescribe  tlie 
duties  of  such  a minister.  In  like  manner,  Avitli  the  consent  of  the  Senate,  the 
president  could  appoint  a judge  of  tlie  Supreme  Court,  and  would  be  bound  to 
do  so,  altliough  no  act  of  Congress  existed  providing  for  the  organization  and 
duties  of  the  court.  But  as  the  president  cannot  distribute  the  judicial  power, 
the  court,  when  so  appointed,  would  liavp  only  the  functions  conferred  by  the 
Constitution,  namely,  original  jurisdiction  in  certain  enumerated  cases. 


MEETING  OF  CONGRESS. 


583 


occasions;  and,  whenever  there  sliould  be  a disagreement  between 
them  with  respect  to  the  time  of  adjournment,  to  adjourn  them  to 
such  time  as  he  shall  think  proper.  The  latter  j)ower  is  to  be  taken 
in  connection  with  the  clause  which  requires  Congress  to  meet  at 
least  once  in  every  year,  and  on  the  first  Monday  in  December, 
unless  a dilferent  day  shall  be  appointed  by  law.  Neither  the  two 
houses  by  agreement,  nor  the  president  in  case  of  a disagreement, 
can  fix  on  a time  of  adjournment  beyond  the  day  of  the  commence- 
ment of  the  next  regular  session.  But  subject  to  this  restriction, 
the  power  of  the  president  to  determine  the  time  at  which  the  two 
houses  shall  reassemble,  when  they  do  not  agree  upon  a time, 
extends  to  every  session  of  Congress,  whether  it  be  regular  or 
extraordinary.” ' 

* In  tlie  text  of  tlie  Constitution  tlie  president’s  power  to  adjourn  the  two 
liouses  of  Congress  in  case  of  a disagreement  follows  immediately  after  his  power 
to  convene  them  on  “ extraordinary  occasions and  it  has,  therefore,  been  sug- 
gested that  his  power  to  adjourn  them  is  confined  to  cases  where  they  have  been 
“ extraordinarily  ” convened  under  the  first  power.  But  it  is  to  be  observed  that 
the  whole  of  the  third  section  of  Article  II.  contains  an  enumeration  of  separate 
powers  of  the  president,  recited  seriatim.  The  power  to  convene  Congress  is  one 
power;  and  it  extends  only  to  “extraordinary”  occasions,  because  the  Constitu- 
tion itself,  or  a law,  convenes  them  at  a fixed  period,  and  thus  makes  the  ordinary 
occasions.  But  the  power  to  adjourn  tlie  two  houses  to  a particular  time,  in 
cases  of  disagreement  as  to  the  time,  is  a separate  and  general  power,  because  the 
reason  for  which  it  was  given  at  all  applies  equally  to  all  sessions.  That  reason 
is,  that  there  may  be  a peaceful  termination  of  what  would  otherwise  be  an  end- 
less and  dangerous  controversy.  Both  Hamilton  in  the  Federalist  and  Judge 
Story  in  his  Commentaries  have  treated  this  as  a separate  and  general  power. 
The  Federalist,  No.  77.  Story  on  the  Constitution,  § 1563. 


CHAPTEE  XXX. 

Eeport  of  the  Committee  of  Detail,  continued. — Formation  of 
THE  Judicial  Power. 

There  now  remains  to  be  described  the  full  conception  and 
creation  of  the  third  department  of  the  government,  its  judicial 
power. 

The  distribution  of  the  powers  of  government,  when  its  sub- 
jects are  to  sustain  no  relation  to  any  other  sovereignty  than  that 
whose  fundamental  laws  it  is  proposed  to  ordain,  is  a compara- 
tively easy  task.  In  such  a government,  when  the  theoretical  di- 
vision into  the  legislative,  executive,  and  judicial  functions  is  once 
adopted,  the  objects  to  which  each  is  to  be  directed  fall  readily 
into  their  appropriate  places.  All  that  is  necessary  is,  to  see  that 
these  departments  do  not  encroach  upon  the  rights  and  duties 
of  each  other.  There  is,  at  least,  no  other  power,  claiming  the 
obedience  of  the  same  people,  whose  just  authority  it  is  necessary 
to  regard,  and  on  whose  proper  domain  no  intrusion  is  to  be  per- 
mitted. 

How  different  is  the  task  when  a government,  either  federal 
or  national,  is  to  be  created,  for  a people  inhabiting  distinct  politi- 
cal states,  whose  sovereign  power  is  to  remain  for  many  purposes 
supreme  over  their  respective  subjects;  when  the  individual  is  to 
be  under  rules  of  civil  duty  declared  by  different  public  organs ; 
and  Avhen  the  object  is  to  provide  a judicial  system  through  Avhich 
this  very  difference  of  authority  may  be  made  to  work  out  the 
ends  of  social  order,  harmon}’^,  and  peace!  This  difficult  undei- 
taking  Avas  imposed  upon  the  framers  of  the  Constitution  of  the 
Unitetl  States,  and  it  Avas  by  far  the  most  delicate  and  difficult  of 
all  their  duties.  It  Avas  comparatively  easy  to  agree  on  the  powers 
Avhich  the  people  of  the  states  ought  to  confer  on  the  general  gov- 
ernment, to  define  the  separate  functions  of  the  legislature  and  tlie 
executive,  and  to  lay  doAvn  certain  rules  of  public  policy  Avhich 


CREATION  OF  THE  JUDICIAL  POWER.  585 

should  restrain  the  states  in  the  exorcise  of  their  separate  powers 
over  their  own  citizens.  But  to  construct  a judicial  power  within 
the  general  government,  and.  to  clothe  it  with  attributes  which 
would  enable  it  to  secure  the  supremacy  of  the  general  Constitu- 
tion and  of  all  its  provisions ; to  give  it  the  exact  authority  that 
would  maintain  the  dividing  line  between  the  powers  of  the  nation 
and  those  of  the  states,  and  to  give  to  it  no  more ; and  to  add  to 
these  a faculty  of  dispensing  justice  to  foreigners,  to  citizens  of 
different  states,  and  among  the  sovereign  states  themselves,  with 
a more  even  hand  and  with  a more  assured  certainty  of  the  great 
ends  of  justice  than  any  state  power  could  furnish — these  were  ob- 
jects not  readily  or  easily  to  be  attained.  Yet  they  were  attained 
with  wonderful  success.  The  judicial  power  of  the  United  States, 
considered  with  reference  to  its  adaptation  to  the  purposes  of  its 
creation,  is  one  of  the  most  admirable  and  felicitous  structures  that 
human  governments  have  exhibited. 

The  groundwork  of  its  formation  has  been  partly  described  in 
a previous  chapter,  where  some  of  the  principles  are  stated  which 
had  been  arrived  at  as  being  necessary  to  its  great  purposes. 
These  principles  related  to  the  persons  who  were  to  exercise  its 
functions,  and  to  the  jurisdiction  or  authority  which  they  were  to 
possess.  With  respect  to  the  persons  who  were  to  exercise  the 
judicial  power,  the  result  that  had  been  reached  when  the  ffrst 
draft  of  the  Constitution  was  to  be  prepared  had  fixed  the  tenure 
of  good  behavior  for  their  office,  and  had  placed  their  salaries, 
when  once  established,  beyond  the  reach  of  any  power  of  diminu- 
tion by  the  legislature.  It  had  also  been  determined  that  there 
should  be  one  supreme  tribunal,  under  the  Constitution,  and  that 
the  legislature  should  have  power  to  establish  inferior  tribunals. 
But  nothing  more  precise  had  been  arrived  at  respecting  jurisdic- 
tion than  the  broad  principles  which  declared  that  it  should  ex- 
tend to  cases  arising  under  laws  passed  by  the  general  legislature, 
and  to  such  other  questions  as  might  touch  the  national  peace  and 
harmony.  The  committee  of  detail  were  to  give  effect  to  this  dec- 
laration. Their  scheme  provided,  under  the  first  of  these  heads, 
that  the  jurisdiction  should  embrace  cases  arising  under  the  laws 
of  the  United  States ; and  as  questions  touching  the  national  peace 
and  harmony,  they  enumerated  all  cases  affecting  ambassadors, 
other  public  ministers,  and  consuls ; impeachments  of  officers  of 


580  CONSTITUTIONAL  HISTORY. 

the  United  States;  all  cases  of  admiralty  and  maritime  jurisdic- 
tion ; controversies  between  two  or  more  states,  excepting  such  as 
might  regard  territory  or  jurisdiction;  controversies  between  a 
state  and  citizens  of  another  state,  between  citizens  of  different 
states,  and  between  a state  or  the  citizens  thereof  and  foreign 
states,  citizens,  or  subjects.  In  cases  of  impeachment,  cases  affect- 
ing ambassadors,  other  public  ministers,  and  consuls,  and  those  in 
which  a state  should  be  party,  they  assigned  the  original  jurisdic- 
tion to  the  Supreme  Court.  In  all  the  other  cases  enumerated  the 
jurisdiction  of  the  supreme  tribunal  was  to  be  appellate  only,  with 
such  exceptions  and  regulations  as  the  legislature  might  make ; 
and  the  original  jurisdiction  was  left  to  be  assigned  by  the  legis- 
lature to  such  inferior  tribunals  as  they  might  from  time  to  time 
create.  The  trial  of  all  criminal  offences,  except  in  cases  of  im- 
peachment, wms  to  be  in  the  state  where  they  had  been  committed, 
and  was  to  be  by  jury.  Controversies  between  states  respecting 
jurisdiction  or  territory,  and  controversies  concerning  lands  claimed 
under  grants  of  different  states,  were  to  be  tried  by  the  Senate, 
and  were  consequently  excluded  from  the  judicial  power. 

This  plan,  when  compared  with  the  full  outline  of  the  jurisdic- 
tion, as  it  was  finally  established,  presented  several  remarkable  de- 
lects. In  the  first  place,  it  was  silent  with  respect  to  the  impor- 
tant distinction,  familiar  to  the  people  of  the  United  States,  between 
proceedings  in  equity  and  proceedings  at  common  law.  This  dis- 
tinction, which  extends  not  only  to  the  forms  of  pleading,  but  to 
the  principles  of  decision,  the  mode  of  trial,  and  the  nature  of  the 
remedy,  had  been  brought  by  the  settlers  of  most  of  the  colonies 
from  England,  and  had  been  perpetuated  in  their  judicial  institu- 
tions. It  existed  in  most  of  the  states  at  the  time  of  the  forma- 
tion of  the  national  Constitution,  and  it  was,  in  fact,  a characteris- 
tic feature  of  the  only  system  of  judicature  which  the  American 
people  had  known,  excepting  in  their  courts  of  admiralty.  Al- 
though the  institutions  of  the  states  differed  in  the  degree  in 
which  they  had  adopted  and  followed  it,  the  basis  of  their  juris- 
prudence and  forms  of  proceeding  was  the  common  law,  as  de- 
rived from  its  English  sources  and  modified  by  their  own  customs 
or  legislation,  with  more  or  less  of  that  peculiar  and  more  ample 
relief  which  is  afforded  by  the  jurisprudence  and  remedy  known 
in  the  English  system  under  the  name  of  equity. 


CllEATlON  OF  THE  JUDICIAL  POWER. 


587 


Since  the  judicial  power  of  the  United  States  was  to  be  exer- 
cised over  a people  Avhose  judicial  habits  were  thus  fixed ; since  it 
must,  to  some  extent,  take  cognizance  of  rights  that  would  have 
to  be  adjudicated  in  accordance  with  the  jurisprudence  under 
which  they  had  arisen ; and  since  the  individuals  who  would  have 
a title  to  enter  its  tribunals  might  reasonably  demand  remedies  as 
ample  as  a judicature  of  English  origin  could  furnish,  it  was  highlv 
exjiedient  that  the  Constitution  should  fully  adopt  the  main  feat- 
ures of  that  judicature.  It  is  quite  true  that  a provision  in  the 
Constitution  extending  the  judicial  power  to  '‘all  cases”  affecting 
certain  persons  or  certain  rights  might  be  regarded  by  the  legis- 
lature as  a sufficient  authority  for  the  establishment  of  inferior 
courts  with  both  a legal  and  an  equitable  jurisdiction,  and  might 
be  considered  to  confer  such  a double  jurisdiction  on  the  supreme 
tribunal  contemplated  by  the  Constitution.  But  the  text  of  the 
Constitution  itself  would  be  the  source  to  which  the  people  of  the 
United  States  would  look,  when  called  upon  to  adopt  it,  for  the 
benefits  which  they  were  to  derive  from  it,  and  there  would  be  no 
part  of  it  which  they  would  scrutinize  more  closely  than  that  which 
was  to  establish  the  judicial  power  of  the  new  government.  If 
they  found  in  it  no  imperative  declaration  making  it  the  duty  of 
Congress  to  provide  for  a jurisdiction  in  equity  as  well  as  at  law, 
and  no  express  adoption  of  such  a jurisdiction  for  the  supreme 
tribunal,  they  might  well  say  that  the  character  of  the  judicial 
power  was  left  to  the  accidental  choice  of  Congress,  or  to  doubt- 
ful interpretation,  instead  of  being  expressly  ordained  in  its  full 
and  essential  proportions  by  the  people.  If  a citizen  of  one  state 
were  to  pursue  a remedy  in  the  courts  of  the  Union  against  a citi- 
zen of  another  state,  or  if  one  state  should  have  a judicial  contro- 
versy with  another,  that  would  be  a very  imperfect  system  of  ju- 
dicature which  should  leave  the  form  and  extent  of  the  remedy  to 
be  determined  by  the  local  law  where  the  process  was  to  be  insti- 
tuted, or  which  should  confine  the  relief  to  the  forms  and  proceed- 
ings of  the  common  law.  If  the  appellate  jurisdiction  of  the 
supreme  national  tribunal  were  to  be  exercised  over  any  class  of 
controversies  originating  in  the  state  courts,  it  was  extremely  im- 
portant that  the  Constitution  should  expressly  ascertain  whether 
suits  at  law,  or  suits  in  equity,  or  both,  were  to  be  embraced  within 
tliat  appellate  power.  For  these  reasons  it  became  necessary  for 


588 


CONSTITUTIONAL  HISTORY. 


the  Convention  to  supply  this  defect,  by  extending  the  judicial 
power,  both  in  equity  and  at  law,  to  the  several  cases  embraced 
in  it. 

Another  defect  in  the  report  of  the  committee — or  what  was 
regarded  as  a defect  when  the  Constitution  was  ratified — and  one 
which  the  Convention  did  not  supply,  was  in  the  omission  of  any 
express  provision  for  trial  by  jury  in  civil  cases.  Such  a provision 
was  supplied  by  an  amendment  proposed  by  the  first  Congress 
that  assembled  under  the  Constitution,  and  adopted  in  1791 ; but 
it  was  regarded  by  the  framers  of  the  Constitution  as  inexpedient, 
on  account  of  the  different  construction  of  juries  in  the  different 
states,  and  the  diversity  of  their  usages  with  respect  to  the  cases 
in  which  trial  by  jury  was  used.‘  It  is  quite  possible  that,  after 
the  Constitution  had  declared  that  the  jurisdiction  of  the  national 
tribunals  should  extend  to  all  cases  “in  law”  affecting  certain 
parties  or  rights.  Congress  would  not  have  been  at  liberty  to  es- 
tablish inferior  tribunals  for  the  trial  of  cases  “ in  law  ” by  any 
other  method  than  according  to  the  course  of  the  common  law, 
which  requires  that  the  fact  in  such  cases  shall  be  tried  by  a jury. 
But  the  objection  which  afterwards  prevailed  was  connected,  as 
we  shall  presently  see,  with  what  was  regarded  as  a dangerous 
ambiguity  in  the  clause  of  the  Constitution  which  gave  to  the 
Supreme  Court  its  appellate  jurisdiction  both  as  to  law  and  fact. 

The  plan  of  the  committee  of  detail  contemplated  a supreme 
tribunal  with  original  jurisdiction  over  a few  of  the  cases  within 
7he  judicial  power,  and  appellate  jurisdiction  over  all  the  other 
cases  enumerated.  Inquiry  was  made  in  the  Convention  whether 
this  appellate  jurisdiction  was  intended  to  embrace  fact  as  well  as 
law,  and  to  extend  to  cases  of  common  law  as  well  as  to  those 
of  equity  and  admiralty  jurisdiction.  The  answer  was  given,  that 
such  wms  the  intention  of  the  committee,  and  the  jurisdiction  of 
the  federal  court  of  appeals,  under  the  Confederation,  was  re- 
ferred to  as  having  been  so  construed.  The  words  “ both  as  to 
law  and  fact  ” were  thereupon  introduced  into  the  description  of 
the  appellate  power,  by  unanimous  consent."  Various  explana- 
tions were  subsequently  given,  when  the  Constitution  came  before 
the  people,  of  the  force  and  meaning  of  these  words.  The  most 


Elliot,  V.  550. 


2 Ibid.,  483. 


CliKATION  OF  THE  JUDICIAL  POWEK.  539 

probable  and  the  most  acute  of  tliese  explanations  was  that  made 
by  JIamdton  in  the  Federalist,'  which  limited  the  effect  of  the 
words,  in  reference  to  common-law  cases,  to  so  much  cognizance 
of  the  facts  involved  in  a record  as  is  implied  in  the  application  of 
the  law  to  them  by  the  appellate  tribunal.  But  the  truth  was,  the 
words  were  of  very  comprehensive  import.  While  they  were  used 
in  order  to  save  to  the  Supreme  Court  power  to  revise' the  facts  in 
equity  and  admiralty  proceedings,  they  made  no  distinction,  and 
imposed  upon  Congress  no  duty  to  make  a distinction,  between 
cases  in  equity  and  admiralty,  and  cases  at  common  law ; and 
although  it  might  be  true  that  in  some  states  the  facts  in  all 
cases  M ere  tried  by  a jury,  and  that  in  some  cases  so  tried  there 
ought  to  be  a power  to  revise  the  facts,  yet  it  was  not  conceded 
that  such  a power  ought  to  exist  over  the  verdicts  of  juries  in 
cases  of  common-law  jurisdiction.  This  explanation  will  serve  to 
show  the  double  purpose  of  the  amendment  made  in  1791.  The 
people  of  many  of  the  states  required  an  express  guarantee  that 
trial  by  jury  should  be  preserved  in  suits  at  common  law,  and 
that  the  facts  once  tried  by  a jury  should  not  be  re-examined 
otherwise  than  according  to  the  rules  of  the  common  law,  which 
have  established  certain  well-defined  limits  to  the  power  of  an  ap- 
pellate tribunal  concerning  the  facts  appearing  to  have  been  found 
by  a jury/ 

There  was  still  another  omission  in  the  report  of  the  commit- 
tee, of  great  magnitude.  They  had  included  in  the  judicial  power 
cases  arising  under  the^  laws  of  the  United  States,  but  they  had 
not  embraced  oases  arising  under  the  Constitution  and  under  trea- 
ties. At  the  same  time,  the  Constitution  was  to  embrace  not  only  ' 
the  powers  of  the  general  government,  but  also  special  restric- 
tions upon  the  powers  of  the  states;  and  not  only  the  Constitu- 
tion Itself,  but  the  laws  made  in  pursuance  of  its  provisions,  and 
all  treaties  made  under  the  authority  of  the  United  States,  were 
to  be  the  supreme  law  of  the  land.  This  supremacy  could  only 
be  enforced  by  some  prescribed  action  of  some  department  of  the 
general  government.  The  idea  of  a legislative  arrest,  or  veto  of 
state  laws  supposed  to  be  in  conflict  with  some  provision  of  the 
national  Constitution,  or  with  a treaty  or  a law  of  the  United 


No.  81. 


* See  the  Seventh  Amendment. 


590 


CONSTITUTIONAL  HISTORY. 


States,  had  been  abandoned.  The  conformity,  moreover,  of  the 
laws  of  Congress  to  the  provisions  of  the  Constitution  could  only 
be  determined  by  the  judicial  power,  when  drawn  into  question 
in  a judicial  proceeding.  The  just  and  successful  operation  of 
the  Constitution,  therefore,  required  that,  by  some  comprehensive 
provision,  all  judicial  cases ' arising  under  the  Constitution,  laws, 
or  treaties  of  the  United  States— whether  the  question  should 
grow  out  of  the  action  of  a state  legislature,  or  the  action  of  any 
department  of  the  general  government — should  be  brought  wdthm 
the  cognizance  of  the  national  judiciary.  This  provision  was 
added  by  the  Convention.  It  completed  the  due  proportions  and 
efficacy  of  this  branch  of  the  judicial  power. 

Trial  by  jury  of  all  criminal  offences  (except  in  cases  of  im- 
peachment) had  been  provided  for  by  the  committee  of  detail,  and 
such  trial  was  to  be  had  in  the  state  where  the  offence  had  been 
committed.  The  Convention,  in  order  to  secure  the  same  right  of 
a jury  trial  in  cases  where  the  offence  had  been  committed  out  of 
any  state,  provided  that  the  trial  should  be  at  such  place  or  places 
as  the  Congress  might  by  law  have  directed." 

These  additions,  with  one  other  which  included  within  the 
judicial  power  all  cases  to  which  the  United  States  might  be  a 
party;  the  transfer  of  the  trial  of  impeachments  to  the  Senate; 
and  the  transfer  to  the  judiciary  of  controversies  between  the 
states  respecting  jurisdiction  or  territory,  and  controversies  re- 
specting land  titles  claimed  under  the  grants  of  different  states— 
were  the  principal  changes  and  improvements  made  in  the  plan  of 
the  committee. 

The  details  of  the  arrangement  will  perhaps  fail  to  interest  the 
o’eneral  reader.  Yet  I cannot  but  think  that  to  understand  the 
purpose  and  operation  of  this  department  of  the  national  govern- 
ment would  be  a very  desirable  acquisition  for  any  of  my  readers 
not  already  possessed  of  it ; and  having  completed  the  description 

1 By  “ cases  ai'ising  under  the  Constitution,”  etc.,  tlie  framei*s  of  that  instru- 
ment did  not  mean  all  cases  in  which  any  department  of  the  government  might 
have  occasion  to  act  under  provisions  of  the  Constitution,  but  all  cases  of  a ju- 
dicial nature;  that  is,  cases  which,  having  assumed  the  form  of  judicial  pro- 
ceedings between  party  and  party,  involve  the  construction  or  operation  of  the 
Constitution  of  the  United  States.  Elliot,  V.  483. 

2 Elliot,  V.  484.  Constitution,  Art.  III.  § 2,  clause  3. 


FUNCTIONS  OF  THE  NATIONAL  JUDICIARY.  591 

of  the  mode  in  which  tlie  judicial  power  was  constructed,  I shall 
conclude  this  part  of  the  subject  with  a brief  statement  of  its  con- 
stitutional functions. 

One  of  the  leading  j^urposes  for  which  this  branch  of  the  gov- 
ernment was  established  was  to  enable  the  Constitution  to  oper- 
ate upon  individuals,  by  securing  their  obedience  to  its  commands, 
and  by  protecting  them  in  the  enjoyment  of  the  rights  and  privi- 
leges which  it  confers.  The  government  of  the  United  States  was 
eminently  intended,  among  other  purposes,  to  secure  certain  per- 
sonal rights,  and  to  exact  certain  personal  duties.  The  Constitu- 
tion confers  on  the  general  government  a few  special  powers,  but 
it  confers  them  in  order  that  the  general  government  may  accom- 
plish for  the  people  of  each  state  the  advantages  and  blessings 
for  which  the  state  governments  are  presumed  to  be,  and  have  Tn 
fact  proved  to  be,  inadequate.  It  lays  upon  the  governments  and 
people  of  the  states  certain  restrictions,  and  it  lays  them  for  the 
protection  of  the  people  against  an  exercise  of  state  power  deemed 
injurious  to  the  general  welfare.  The  government  of  the  United 
States,  therefore,  is  not  only  a government  which  seeks  to  protect 
the  welfare  and  happiness  of  the  people  who  live  under  it,  but  it 
is  so  constructed  as  to  make  its  citizens  directly  and  individually 
its  subjects,  exacting  of  them  certain  duties,  and  securing  to  them 
certain  rights.  It  comes  into  this  relation  by  reason  of  its  su- 
preme legislative  power  over  certain  interests,  and  the  supreme  ^ 
authority  of  its  restrictions  upon  the  powers  of  the  states ; and  it 
is  enabled  to  make  this  relation  effectual  through  its  judicial  de- 
partment, which  can  take  cognizance  of  every  duty  that  the  Con- 
stitution exacts  and  of  every  right  that  it  confers,  whenever  they 
have  assumed  a shape  in  which  judicial  power  can  act  upon  them. 

Let  us  take,  as  illustrations  of  this  function  of  the  national  judici- 
ary, a single  instance  of  the  obedience  required  by  the  Constitu- 
tion, and  also  one  of  a right  which  it  protects.  The  Constitution 
empowers  Congress  to  lay  and  collect  duties ; which,  when  they 
are  laid  and  incurred,  become  a debt  due  from  the  individual 
owner  of  the  property  on  which  they  are  assessed  to  the  general 
government.  Payment,  in  disputed  cases,  might  have  been  left 
to  be  enforced  by  executive  power ; but  the  Constitution  has  in- 
terposed the  judicial  department,  as  the  more  peaceful  agent, 
y hich  can  at  once  adjudicate  between  the  government  and  the  citi- 


592 


CONSTITUTIONAL  HISTORY. 


zen,  and  compel  the  payment  of  what  is  found  due.  Again,  the 
Constitution  provides  that  no  state  shall  pass  any  law  impairing 
the  obligation  of  contracts.  An  individual  supposing  himself  to 
be  aggrieved  by  such  a law  might  have  been  left  to  obtain  such 
redress  as  the  judicial  or  legislative  authorities  of  the  state  might 
be  disposed  to  give  him ; but  the  Constitution  enables  him  finally 
to  resort  to  the  national  judiciary,  which  has  power  to  relieve  him 
against  the  operation  of  the  law  upon  his  personal  rights,  whde 
the  law  itself  may  be  left  upon  the  statute-book  of  the  state. 

But  while  the  judicial  department  of  the  general  government 
was  thus  designed  to  enforce  the  duties  and  protect  the  rights  of 
individuals,  it  is  obvious  that,  in  a system  of  government  where 
such  rights  and  duties  are  to  be  ascertained  by  the  provisions  of  a 
fundamental  law  framed  for  the  express  purpose  of  defining  the 
powers  of  the  general  government  and  of  each  of  its  departments, 
and  establishing  certain  limits  to  the  powers  of  the  states,  the 
mere  act  of  determining  the  existence  of  such  rights  or  duties 
may  involve  an  adjudication  upon  the  question,  whether  acts  of  leg- 
islative or  executive  power  are  in  conformity  with  the  requirements 
of  the  fundamental  law.  On  the  one  hand,  the  judicial  department 
is  to  see  that  the  legislative  authority  of  the  Union  does  not  exact 
of  individuals  duties  which  are  not  within  its  prescribed  powers, 
and  that  no  department  of  the  general  government  encroaches 
upon  the  rights  of  any  other,  or  upon  the  rights  of  the  states ; 
and,  on  the  other  hand,  it  has  to  see  that  the  legislative  authority 
of  the  states  does  not  encroach  upon  the  powers  conferred  upon 
the  general  government,  or  violate  the  rights  which  the  Constitu- 
tion secures  to  the  citizen.  All  this  may  be,  and  constantly  is, 
involved  in  judicial  inquiries  into  the  rights,  powers,  functions, 
and  duties  of  private  citizens  or  public  officers ; and  therefore,  m 
order  that  the  judicial  power  should  be  able  effectually  to  dis- 
charge its  functions,  it  must  possess  authority,  for  the  purposes 
of  the  adjudication,  to  declare  even  an  act  of  legisktion  to  be 
void,  which  conflicts  with  any  provision  of  the  Constitution. 

There  were  great  differences  of  opinion  in  the  Convention  upon 
the  expediency  of  giving  to  the  judges,  as  expositors  of  the  Con- 
stitution, power  to  declare  a law  to  be  void ; ' and  undoubtedly 


> Elliot,  V,  429. 


FUNCTIONS  OF  THE  JUDICIARY. 


593 


such  a power,  if  introduced  into  some  governments,  would  be  leg- 
islative in  its  nature,  whether  the  persons  who  were  to  exercise 
it  should  be  called  judges,  or  be  clothed  with  the  functions  of  a 
council  of  revision.  But  under  a limited  and  written  constitution 
such  a power,  when  given  in  the  form  and  exercised  in  the  mode 
])rovided  for  in  the  Constitution  of  the  United  States,  is  strictly 
judicial.  This  is  apparent  from  the  question  that  is  to  be  deter- 
mined. It  arises  in  a judicial  controversy  respecting  some  right 
asserted  by  or  against  an  individual ; and  the  matter  to  be  deter- 
mined is  whether  an  act  of  legislation,  supposed  to  govern  the 
case  as  law,  is  itself  in  conformity  to  the  supreme  law  of  the  Con- 
stitution. In  a government  constituted  like  ours,  this  question 
must  be  determined  by  some  one  of  its  departments.  If  it  be  left 
with  the  executive  to  decide  finally  what  laws  shall  be  executed, 
because  they  are  consistent  with  the  Constitution,  and  what  laws 
shall  be  suspended,  because  they  violate  the  Constitution,  this 
practical  inconvenience  may  arise,  namely,  that  the  decision  is 
made  upon  the  abstract  question,  before  a case  to  be  governed 
by  the  law  has  arisen.  If  the  legislature  were  empowered  to  de- 
termine, finally,  that  the  laws  which  they  enact  are  constitution- 
al, the  same  practical  difficulty  would  exist ; and  the  individual, 
whose  rights  or  interests  may  be  affected  by  a law  when  put  into 
operation,  would  have  no  opportunity  to  be  heard  upon  what,  in 
our  form  of  government,  is  a purely  juridical  question,  on  which 
every  citizen  should  be  heard,  if  he  desires  it,  before  the  law  is 
enforced  in  his  case.  On  the  other  hand,  if  the  final  and  authori- 
tative determination  is  postponed  until  the  question  arises  in  the 
course  of  a judicial  controversy  respecting  some  right  or  duty  or 
power  of  an  individual  who  is  to  be  affected  by  the  law,  or  who 
acts  under  it,  the  question  itself  is  propounded  not  in  the  abstract,  ^ 
but  in  the  concrete ; not  in  reference  to  the  bearing  of  the  law 
upon  all  possible  cases,  but  to  its  bearing  upon  the  facts  of  a single 
case.  In  this  aspect  the  question  is  of  necessity  strictly  judicial. 

To  withhold  from  the  citizen  a right  to  be  heard  upon  the  ques- 
tion which  in  our  jurisprudence  is  called  the  constitutionality  of  a 
law,  when  that  law  is  supposed  to  govern  his  rights  or  prescribe 
his  duties,  would  be  as  unjust  as  it  would  be  to  deprive  him  of  the 
right  to  be  heard  upon  the  construction  of  the  law,  or  upon  any 
other  legal  question  that  arises  in  the  cause.  The  citizen  lives 
I.— 3S 


CONSTITUTIONAL  HISTORY. 


594 

under  the  protection,  and  is  subject  to  the  requirements,  of  a writ- 
ten fundamental  law.  No  department  of  the  national,  or  of  any 
state  government,  can  lawfully  act  otherwise  than  according  to 
the  powers  conferred  or  the  restrictions  imposed  by  that  instru- 
ment. If  the  citizen  believe  himself  to  be  aggrieved  by  some  ac- 
tion of  either  government  which  he  supposes  to  be  in  violation  of 
the  Constitution,  and  his  complaint  admit  of  judicial  investiga- 
tion, he  must  be  heard  upon  that  question,  and  it  must  be  adjudi- 
cated, or  there  can  be  no  administration  of  the  laws  worthy  of  the 
name  of  justice. 

It  is  interesting,  therefore,  to  observe  how  this  function  of  the 
judicial  power  gives  to  the  operation  of  the  government  a compar- 
atively high  degree  of  simplicity,  exactness,  and  directness,  not- 
withstanding the  refined  and  complex  character  of  the  system 
which  its  framers  were  obliged  to  establish.  To  judge  of  the  mer- 
its of  that  system,  in  this  particular,  it  is  necessary  to  recur  again 
to  those  alternative  measures  to  which  I have  frequently  referred, 
and  which  lay  directly  in  their  path.  One  of  these  measures  was 
that  of  a council  of  revision,  to  be  charged  with  the  duty  of  arrest- 
ing improper  laws.  Besides  the  objection  which  has  been  already 
alfuded  to— that  the  question  of  the  conformity  of  a law  to  the 
Constitution  would  have  thus  been  finally  passed  upon  in  the  ab- 
stract-such an  institution,  although  theoretically  confined  to  this 
inquiry,  would  have  become  practically  a third  legislative  cham- 
ber ; for  it  would  inevitably  have  happened  that  considerations  of 
expediency  would  also  have  found  their  way  into  the  deliberations 
of  a numerous  body  appointed  to  exercise  a revisory  power  over 
all  acts  of  legislation.  There  is  no  mode  in  which  the  question  of 
constitutional  power  to  enact  a law  can  be  determined,  without 
the  influence  of  considerations  of  policy  or  expediency,  so  effec- 
tuallv  as  by  confining  the  final  determination  to  the  special  oper- 
ation of  the  law  upon  the  facts  of  an  individual  case.  When  the 
tribunal  that  is  to  decide  this  question  is,  by  the  very  form  m 
which  it  is  required  to  act,  limited  to  the  bearing  of  the  law  upon 
some  right  or  duty  of  an  individual  placed  in  judgment  by  a rec- 
ord, it  Ts  at  once  relieved  of  the  responsibility,  and  in  a great 
deo-ree  freed  from  the  temptation,  of  considering  the  policy  of  the 
leSslation.  If,  therefore,  it  be  conceded— as  every  one  will  con- 
cede—that,  whatever  public  body  is  specially  instituted  for  the 


FUNCrnONS  of  the  judiciary. 


595 


purpose  of  submitting  the  acts  of  the  legislature  to  the  test  of  the 
Constitution,  it  should  neither  possess  the  power,  nor  be  exposed 
to  the  danger,  of  invading  the  legislative  province,  by  acting  upon 
motives  of  expediency,  it  must  be  allowed  that  the  framers  of  the 
Constitution  did  Avisely  in  rejecting  the  artificial,  cumbrous,  and 
hazardous  project  of  a council  of  revision.  The  plan  of  such  a 
council  was,  it  is  true,  much  favored,  and,  indeed,  insisted  upon,  by 
some  of  the  wisest  men  in  the  Convention.  But  it  AA^as  urged  at 
a time  Avhen  the  negatiA^e  that  Avas  to  be  gi\-en  to  the  president 
had  not  been  settled,  and  Avhen  he  had  not  been  made  sufficiently 
independent  of  the  legislature  to  insure  his  unfettered  employment 
of  the  iiegatiA-e  that  might  be  given  to  him.  The  purpose  of  the 
proposed  council  of  revision  was  to  strengthen  his  hands,  by  unit- 
ing the  judges  Avith  him  in  the  exercise  of  the  ''  veto.”  This  aa^ouM 
have  giA-en  to  the  judges  a control  both  over  the  question  of  con- 
stitutional poAver  and  the  question  of  legislative  policv.  As  to 
the  latter,  it  became  unnecessary,  as  Avell  as  inexpedient,  to  unite 
the  judges  with  the  president,  after  he  had  been  clothed  with  a 
suitable  negatiA-e,  and  after  his  election  had  been  taken  from  the 
legislature ; and  as  to  the  former  question,  the  final  arrangement 
of  the  judicial  poAver  made  it  equally  unnecessary  to  form  the 
judges  into  a council  of  revision,  since,  if  the  president  should  fail 
to  arrest  an  unconstitutional  law,  Avhen  presented  for  his  approval, 
it  could  be  tested  in  the  ordinary  course  of  judicial  proceedings 
after  it  had  gone  into  operation. 

But  the  conformity  of  laAvs  of  Congress  to  the  Constitution  was 
not  all  that  Avas  to  be  secured.  Some  prudent  and  effectual  means 
were  to  be  deAused  by  AA^hich  the  acts  of  the  state  governments 
could  be  subjected  to  the  same  test.  The  project  of  submitting 
the  laAvs  of  the  states  to  some  department  of  the  general  govern- 
ment, while  they  Avere  in  the  process  of  being  enacted,  or  before 
they  could  have  the  form  of  laAv,  was  full  of  incouA^enience  and 
hazard.  It  could  not  have  been  attempted  Avithout  an  injury  to 
state  pride  that  Avould  have  aroused  an  inextinguishable  opposi- 
tion to  the  national  authority,  even  if  the  plan  could  once  have 
been  assented  to.  Yet  there  Avas  no  other  alternatiA^e,  unless  the 
judicial  poAver  of  the  general  government  should  be  so  constructed 
as  to  enable  it  to  take  the  same  cognizance  of  a constitutional 
question,  when  arising  upon  the  laAv  of  a state,  that  it  Avas  to  take 


CONSTITUTIONAL  HISTORY. 


596 

of  such  a question  when  arising  upon  an  act  of  Congress.  The 
same  necessity  would  exist  in  the  one  case  as  in  the  other,  for  a 
power  within  the  general  government  to  give  practical  effect  to 
that  supremacy  which  the  Constitution  was  to  claim  for  itself,  for 
treaties,  and  for  the  laws  passed  in  pursuance  of  its  provisions. 
All  the  restrictions  which  the  Constitution  was  to  lay  upon  the 
powers  of  the  states  would  be  nugatory  if  the  states  themselves 
were  to  be  the  final  judges  of  their  meaning  and  operation.  This 
transcendent  power  of  interpretation  and  application,  so  logically 
necessary  and  yet  so  certain  to  wound  and  irritate  if  exercised 
by  direct  interference,  could  be  wielded,  without  injurious  results, 
through  the  agency  of  judicial  forms,  by  a judicial  investigation 
into  personal  rights,  when  affected  by  the  action  of  a state  gov- 
ernment, just  as  it  could  be  in  reference  to  the  acts  of  any  depart- 
ment of  the  national  government  that  could  be  made  the  subject 
of  proceedings  in  a court  of  justice. 

The  relation  of  the  judicial  power  to  the  execution  of  treaties 
rests  upon  the  same  grounds  of  paramount  necessity.  It  is  not 
merely  for  the  sake  of  uniformity  of  interpretation  that  the  na- 
tional judiciary  is  authorized  to  decide  finally  all  cases  arising 
under  treaties,  although  uniformity  of  interpretation  is  essential 
to  the  preservation  of  the  public  faith ; but  it  is  in  order  that  the 
treaty  shall  be  executed,  by  being  placed  beyond  the  hazards  both 
of  wrong  construction  and  of  interested  opposition.  The  memo- 
rable instance  of  the  Treaty  of  Peace,  the  absolute  failure  of  which 
in  point  of  execution,  before  the  adoption  of  the  Constitution,  has 
been  described  in  a former  part  of  this  work,  presents  the  great 
illustration,  in  our  constitutional  history,  of  the  only  mode  m 
which  the  supremacy  of  treaty  stipulations  as  law  can  be  main- 
tained in  our  system  of  government.  “ The  United  States  in  Con- 
gress assembled,”  under  the  Confederation,  had  the  same  exclusive 
authority  to  make  treaties  that  is  now  possessed  by  the  president 
and  the  Senate  under  the  Constitution,  and  a treaty  was  in  theory 
as  obligatory  then,  upon  the  separate  states  and  their  inhabitants, 
as  it  is  now.  But  it  has  been  found  to  be  an  axiom  of  universal 
application  in  the  art  of  government,  that  a supremacy  which  is 
merely  theoretical  is  no  real  supremacy.  If  a stipulation  made 
by  the  proper  authority  with  a foreign  government  is  to  have  the 
force  of  law,  requiring  the  obedience  of  individuals  and  of  all  pub- 


lie  authorities,  its  execution  must  be  committed  to  a judiciary  act- 
ing  upon  ])rivate  rights  without  the  hinderance  or  influence  of 
adverse  legislation. 

There  is  another  branch  of  the  judicial  power  which  illustrates 
in  a striking  manner  the  object  embraced  in  the  preamble  of  the 
Constitution,  where  the  people  of  the  United  States  declare  it  to 
be  their  purpose  ‘‘  to  establish  justice.”  This  is  found  in  the  pro- 
vision for  a special  jurisdiction  over  the  rights  of  persons  bearing 
a certain  character.  Like  almost  everything  else  in  the  Constitu- 
tion, this  feature  of  the  judicial  power  sprang  from  a necessity 
taught  by  previous  and  severe  experience.  Keasoning  from  the 
mere  nature  of  such  a government  as  that  of  the  United  States,  it 
might  seem  that  the  judicatures  of  the  separate  states  would  be 
sufficient  for  the  administration  of  justice  in  all  cases  in  which 
plicate  lights  alone  are  concerned,  and  by  which  no  power  or 
interest  of  the  general  government,  and  no  provision  of  the  gen- 
eral Constitution,  is  likely  to  be  affected.  But  we  find  in  the 
judicial  power  of  the  United  States  a particular  jurisdiction  given 
on  account  of  the  mere  civil  characters  of  the  parties  to  a contro- 
'versy;  and  its  existence  there  is  to  be  accounted  for  upon  other 
than  speculative  reasons.  From  the  Declaration  of  Independence 
to  the  day  of  the  ratification  of  the  Constitution,  the  judicial  tribu- 
nals of  the  states  had  been  unable  to  administer  justice  to  foreign- 
ers, to  citizens  of  other  states,  to  foreign  governments  and  their 
representatives,  and  to  the  governments  of  their  sister  states,  so 
as  to  command  the  confidence  and  satisfy  the  reasonable  expecta- 
tions of  an  enlightened  judgment.  Hence  the  necessity  for  open- 
ing the  national  courts  to  these  various  classes  of  parties,  whose 
different  positions  may  now  be  briefly  considered. 

In  a country  of  confederated  states,  each  possessing  a full 
power  of  legislation,  it  could  not  but  happen— as  it  did  constantly 
happen  in  this  Union  before  the  adoption  of  the  Constitution— 
that  the  determination  of  controversies  between  citizens  of  the 
state  where  the  adjudication  was  to  be  had,  and  citizens  of  another 
state,  would  be  exposed  to  influences  unfavorable  to  the  ends  of 
justice.  In  truth,  one  of  the  parties  in  such  a controversv  was 
virtuall}^  an  alien  in  the  tribunal  which  he  was  obliged  to  enter ; 
for  although  the  Articles  of  Confederation  undertook  to  secure  to 
the  free  inhabitants  of  each  state  all  the  privileges  and  immunities 


598 


CONSTITUTIONAL  HISTORY. 


of  free  citizens  in  the  several  states,  yet  it  is  obvious  that  the 
efhcacy  of  such  a provision  must  depend  almost  wholly  upon  the 
spirit  of  the  tribunals,  and  upon  their  capacity  to  give  effect  to 
such  a declaration  of  rights,  against  a course  of  state  policy  or  the 
positive  enactments  of  a state  code.  The  chief  difficulty  of  the 
condition  of  affairs  existing  before  the  Constitution  lay  not  so 
much  in  the  hazards  of  a violation  of  principle  through  local  preju- 
dice, or  the  superior  force  of  local  policy  or  legislation— although 
these  influences  were  always  powerful — as  in  the  fact  that,  when 
these  influences  were  likely  to  be  most  active,  or  were  most  feared, 
there  was  no  tribunal  to  which  resort  could  be  had,  and  which  was 
known  to  be  beyond  their  operation  and  their  reach.  The  articles 
of  compact  between  the  states  had  intended  to  remove  from  the 
citizens  of  the  different  states  the  disabilities  of  practical  alienage 
under  which  they  would  have  stood  in  the  tribunals  of  each  other. 
But  with  that  mere  declaration  those  articles  stopped.  If  the  liti- 
gant saw  that  the  local  law  wnis  likely  to  be  administered  to  him 
as  if  he  were  a foreigner,  or  feared  that  the  scales  of  justice  v\  ould 
not  be  held  with  an  impartial  hand,  he  could  go  nowhere  else  for 
a decision.  This  was  a great  evil ; for  much  of  the  value  of  every 
judicature  depends  upon  the  confidence  it  inspires. 

There  were  still  other  and  perhaps  stronger  reasons  for  creat- 
ing an  independent  jurisdiction,  to  be  resorted  to  by  foreigners,  in 
controversies  with  citizens  of  the  states.  Iso  clause  in  the  Con- 
stitution w^as  to  make  them  equal  in  rights  with  citizens,  and  foi 
the  very  reason  of  their  alienage,  therefore,  it  was  necessary  to 
give  them  access  to  tribunals  organized  under  the  authority  of 
the  general  government,  which  would  be  responsible  to  foreign 
powers  for  the  treatment  that  their  subjects  might  receive  in  the 
United  States.  Ambassadors,  too,  and  other  foreign  ministers, 
would  not  only  be  aliens,  but  would  possess  the  character  of  re]> 
resentatives  of  their  sovereigns ; and  consuls  would  be  the  public 
agents  of  their  governments,  although  not  bearing  the  diplomatic 
character.  These  functionaries  were  therefore  permitted  to  resort 
to  the  judicial  power  of  the  United  States;  and  for  the  purpose 
of  more  effectually  protecting  tlie  national  interests  that  might 
be  involved  in  their  personal  or  official  relations,  original  jurisdic- 
tion was  given  to  the  Supreme  Court  in  all  cases  affecting  them. 

In  addition  to  these  there  were  other  controversies  which, 


ADMIRALTY  JURISDICTION. 


599 


as  we  have  seen,  were  included  within  tlie  judicial  power  of  the 
United  States,  on  account  of  the  character  of  the  parties  : namely, 
those  to  which  the  United  States  might  be  a party  ; those  to  which 
a state  of  the  Union  might  be  a party,  where  the  opposite  party 
was  another  state  of  the  Union,  or  a citizen  of  another  state  of 
the  Union,  or  a foreign  state  or  its  citizens  or  subjects  ; and  those 
between  citizens  of  a state  of  the  Union  and  foreign  states,  citi- 
zens, or  subjects.  Finally,  controversies  between  citizens  of  the 
same  state  claiming  lands  under  grants  of  different  states  were 
placed  under  the  same  jurisdiction  for  similar  reasons ; because  the 
state  tribunals  could  not  be  expected  to  afford  that  degree  of  im- 
partiality which  the  circumstances  of  these  several  cases  required. 

There  remains  only  one  other  branch  of  the  jurisdiction  con- 
ferred by  the  Constitution  on  the  tribunals  of  the  United  States 
which  it  is  necessary  to  notice : namely,  the  admiralty  and  mari- 
time jurisdiction.  With  respect  to  the  criminal  jurisdiction  in  ad- 
miralty, in  cases  of  piracies  and  felonies  committed  on  the  high 
seas,  and  the  prize  jurisdiction,  the  Articles  of  Confederation  had 
given  to  the  Congress  the  exclusive  power  of  appointing  courts 
for  the  trial  of  the  former,  and  for  hearing  and  finally  determin- 
ing appeals  in  all  cases  of  capture.  Such  appeals  were  taken  from 
the  state  courts  of  admiralty,  tribunals  which  also  possessed  and 
exercised  a civil  jurisdiction  corresponding  to  that  of  the  admiralty 
in  England,  but  in  practice  somewhat  more  extensive.  When  the 
Constitution  was  framed  it  was  perceived  to  be  expedient,  on  ac- 
count of  the  relation  of  maritime  commerce  to  the  intercourse  of 
the  people  of  the  United  States  with  foreign  nations,  or  to  the 
intercourse  of  the  people  of  different  states  with  each  other,  to 
give  the  whole  civil  as  well  as  criminal  jurisdiction  in  admiralty, 
and  the  entire  prize  jurisdiction,  original  as  well  as  appellate,  to 
the  government  of  the  Union.  This  was  effected  by  the  compre- 
hensive provision  which  gives  the- judicial  power  cognizance  of 
“ all  cases  of  admiralty  and  maritime  jurisdiction  expressions 
which  have  often  been,  and  are  still  likely  to  be,  the  subject  of 
controversy  with  respect  to  the  particular  transactions,  of  a civil 
nature,  intended  to  be  embraced  in  the  jurisdiction,  but  in  refer- 
ence to  which  there  is  nothing  in  the  known  proceedings  of  the 
Convention,  other  than  what  is  to  be  inferred  from  flie  language 
selected,  that  affords  any  special  evidence  of  the  intention  of  the 
framers  of  the  Constitution 


CHAPTER  XXXI. 

Report  of  the  Committee  of  Detail,  continued.  — Effect  of 
Records. — Inter-State  Privileges. — Fugitives  from  Justice 
AND  FROM  Service. 

We  now  come  to  a class  of  provisions  designed  to  place  the 
people  of  the  separate  states  in  better  relations  with  each  other, 
by  removing,  in  some  degree,  the  consequences  that  Avould  oth- 
erwise flow  from  their  distinct  and  independent  jurisdictions. 
This  was  to  be  done  by  causing  the  rights  and  beneflts  resulting 
from  the  laws  of  each  state  to  be,  for  some  purposes,  respected 
in  every  other  state.  In  other  words,  by  the  establishment  and 
effect  of  certain  exceptions,  the  general  rule  which  absolves  an 
independent  government  from  any  obligation  to  regard  the  law, 
the  authority,  or  the  policy  of  another  government  was,  for  some 
purposes,  to  be  obviated  between  the  states  of  the  American  Union. 

To  some  extent  this  had  been  attempted  by  the  Articles  of 
Confederation,  by  providing : first,  that  the  free  inhabitants  of 
each  of  the  states  (paupers,  vagabonds,  and  fugitives  from  justice 
excepted)  should  be  entitled  to  all  privileges  and  immunities  of 
free  citizens  in  the  several  states,  and  that  tlie  people  of  each  state 
should  have  free  ingress  and  regress  to  and  from  any  other  state, 
and  the  same  privileges  of  trade  and  commerce  as  its  inhabitants ; 
secondly,  that  fugitives  from  justice  charged  with  certain  enu- 
merated crimes,  and  escaping  from  one  state  into  another,  should 
be  given  up,  on  demand  of  the  executive  of  the  state  from  Avhicli 
they  had  escaped  ; and,  thirdly,  that  full  faith  and  credit  should 
be  given  in  each  state  to  the  records,  acts,  and  judicial  proceed- 
ings of  the  courts  and  magistrates  of  every  other  state. 

The  Confederation,  however,  Avas  a “firm  league  of  friendsliip 
Avith  each  other,”  entered  into  by  separate  states,  and  the  object 
of  the  provisions  aboA’^e  cited  AA^as  “ the  better  to  secure  and  ])cr- 
petuate  mutual  friendship  and  intercourse  among  the  people”  of 


FUGITIVES  FHOJI  JUSTICE, 

tliose  states.  One  of  tlie  jiurposes  of  the  Constitution,  on  the 
otlier  hand,  was  “ to  form  a more  perfect  Union and  we  are 
tlierefore  to  expect  to  find  its  framers  enlarging  and  increasing 
the  scope  of  tliese  provisions,  and  giving  to  them  greater  precision 
and  vigor.  We  shall  see,  also,  that  they  made  a very  important 
addition  to  tlieir  number. 

The  first  thing  that  was  done  was  to  make  the  language  of 
the  Confederation  respecting  the  privileges  of  general  citizenship 
somewhat  more  precise.  The  Articles  of  Confederation  had  made 
the  free  inhabitants  of  each  state,”  with  certain  exceptions,  en- 
titled to  the  privileges  and  immunities  of  “free  citizens  in  the 
several  states.”  ‘ It  is  probable  that  these  two  expressions  were 
intended  to  be  used  in  the  same  sense,  and  that  by  “ free  inhabi- 
tants ” of  a state  was  meant  its  “ free  citizens.”  The  framers  of 
the  Constitution  substituted  the  latter  expression  for  the  former, 
and  thus  designated  more  accurately  the  persons  who  are  to  enjoy 

the  privileges  and  immunities  of  free  citizens  in  other  states  be- 
sides  tlieir  own. 

In  the  next  place,  while  the  Articles  of  Confederation  declared 
that  full  faith  should  be  given  in  each  state  to  the  acts,  records, 
and  judicial  proceedings  of  every  other  state,  they  neither  pre- 
scribed the  mode  in  which  the  proof  was  to  be  made,  nor  the 
effect  when  it  had  been  made.  The  committee  of  detail,  in  pre- 
paring the  first  draft  of  the  Constitution,  merely  adopted  the 
naked  declaration  of  the  Articles.  The  Convention  added  to  it  the 
urther  provision  which  enabled  Congress  to  prescribe  by  general 
aws  the  manner  in  which  such  acts,  records,  and  proceedings  shall 
be  proved,  and  the  effect  to  be  given  to  them  when  proved." 

With  respect  to  fugitives  from  justice,  the  Articles  of  Confed- 


^ See  and  compare  Art.  IV.  of  the  Confederation  and  Art.  IV.  § 2 of  the  Con- 
stitution. 

* So  far  as  the  proceedings  in  the  Convention  are  to  be  regarded  as  a o-uide 
to  construction,  it  appears  clearly  that  the  clause  which  empowers  Congress  to 
prescribe  the  manner  in  which  such  acts,  records,  and  proceedings  shall  be 
proved,  and  the  effect  thereof;’  was  intended  to  give  a , lower  to  declare  the  effect 
o tie  acts,  records,  and  judicial  proceedings  of  .any  state,  when  offered  in  evi- 
dence in  another  state,  as  well  as  to  prescribe  the  mode  of  proving  them.  See 

t lot,  V.  487,  488,  503,  504.  See  also  a learned  discussion  on  this  clause  in 
btory  s Commentaries,  §§  1302-1313. 


CONSTITUTIONAL  HISTORY. 


G02 

eration  had  specilied  persons  “ charged  with  treason,  felony,  or 
other  high  misdemeanor  in  any  state,”  as  those  who  were  to  be 
given  up  by  the  states  to  each  other.  For  the  purpose  of  avoid- 
ing the  ambiguity  of  this  language,  the  provision  was  made  to 
embrace  all  other  crimes,  as  well  as  treason  and  felon'y. 

Besides  correcting  and  enlarging  these  provisions,  the  framers 
of  the  Constitution  introduced  into  the  system  of  the  Union  a 
special  feature,  which,  in  the  relations  of  the  states  to  each  other, 
was  then  entirely  novel,  although  not  without  precedent.  I refer 
to  the  clause  requiring  the  extradition  of  “ fugitives  from  service, 
who  have  escaped  from  one  state  into  another. 

In  describing  the  compromises  of  the  Constitution  relating  to 
slavery  I have  not  placed  this  provision  among  them,  because  it 
was  not  a part  of  the  arrangement  by  which  certain  powers  were 
conceded  to  the  Union  by  one  class  of  states,  in  consideration  of 
certain  concessions  made  by  another  class.  It  is  a provision  stand- 
ing by  itself,  in  respect  to  its  origin,  about  which  there  was  for- 
merly some  misapprehension.  Its  history  is  as  follows  : 

In  many  of  the  discussions  that  liad  taken  place  in  preparing 
the  outline  of  the  government  that  was  sent  to  the  committee  of 
detail,  a good  deal  of  jealousy  had  been  felt  and  expressed  by 
some  of  the  Southern  members,  not  only  with  regard  to  the  rela- 
tive weight  of  their  states  in  the  representative  system,  but  also 
with 'respect  to  the  security  of  their  slave  property.  Slavery,  al- 
though it  had  existed  in  all  of  the  states,  and  although  there  still 
remained  in  all  of  them  excepting  Massachusetts  some  persons  of 
the  African  race  still  held  in  that  condition,  was  hkely  soon  to 
disappear  from  the  states  of  New  Hampshire,  Ehode  Island,  Con- 
necticut, New  York,  and  Pennsylvania,  under  changes  that  would 
be  introduced  by  their  constitutions  or  by  statutory  provision. 
In  the  whole  of  New  England,  therefore,  and  in  nearly  all  of  the 
Middle  States  excepting  Maryland,  if  the  principles  of  the  com- 
mon law  and  of  the  law  of  nations  were  to  be  applied  to  such 
cases,  the  relation  of  master  and  slave,  existing  under  the  law 
of  another  state,  could  not  be  recognized,  and  there  could  be  no 
means  of  enforcing  a return  to  the  jurisdiction  which  gave  to  the 
master  a right  to  the  custody  and  services  of  the  slave.  At  the 


• Elliot,  V.  487. 


FUGITIVES  FROM  JUSTICE. 


C03 

same  time,  it  was  apjmrent  tliat,  in  tlie  five  states  of  Maryland, 
\ iiginia,  Nortli  Carolina,  South  Carolina,  and  Georgia,  slavery 
Avould  not  only  be  likely  to  continue  for  a very  long  period  of 
time,  but  that  this  form  of  labor  constituted,  and  would  be  likely 
long  to  constitute,  a necessary  part  of  their  social  system.  The 
theory  on  which  the  previous  Union  had  been  framed,  and  on  which 
the  new  Union  now  intended  to  be  consummated  was  expressly  to 
be  founded,  was,  that  the  domestic  institutions  of  the  states  were 
exclusively  matters  of  state  jurisdiction.  But  if  a relation  between 
persons,  existing  by  the  law  of  a particular  state,  was  to  be  broken 
up  by  an  escape  into  another  state,  by  reason  of  the  fact  that  such 
a relation  was  unknown  to  or  prohibited  by  the  law  of  the  place 
to  which  the  party  had  fled,  it  was  obvious  that  this  theory  of  the 
Union  would  be  of  very  little  practical  value  to  the  states  in  which 
such  a relation  was  to  exist  and  to  be  one  of  great  importance. 
If  the  territory  of  every  state  in  which  this  relation  was  not  to 
be  recognized  were  to  be  made  an  asylum  for  fugitives,  the  right 
of  the  master  to  the  services  of  the  slave  would  be  whollv  in- 
secure. 

It  was  in  reference  to  this  anticipated  condition  of  things  that 
General  Pinckney  of  South  Carolina,  at  the  time  when  the  princi- 
ples that  were  to  be  the  basis  of  the  Constitution  were  sent  to  the 
committee  of  detaifl  gave  notice  that,  unless  some  provision  should 
be  inserted  in  their  report  to  prevent  this  consequential  emancipa- 
tion, he  should  vote  against  the  Constitution.  Considering  the 
position  and  influence  of  this  gentleman,  his  declaration  was  equiv- 
alent to  a notice  that,  without  such  a provision,  the  Constitution 
would  not  be  accepted  by  the  state  which  he  represented.  Still,  the 
committee  of  detail  omitted  to  make  any  such  special  provision 
in  their  report  of  a constitution,  and  inserted  only  a general  article 
that  the  citizens  of  each  state  should  be  entitled  to  all  the  privi- 
leges and  immunities  of  citizens  in  the  several  states."  General 
Pinckney  was  not  satisfled  with  this,  and  renewed  his  demand  for 
a provision  ‘‘  in  favor  of  property  in  slaves.” " But  the  article 


’ July  23d.  Elliot,  V.  357. 

* Art.  XIV.  of  the  report  of  the  committee  of  detail. 

These  are  the  words  of  Mr.  Madisou’s  Minutes.  Elliot,  V.  487.  This  was 
on  the  26th  of  August. 


604 


CONSTITUTIONAL  HISTORY. 


was  adopted,  South  Carolina  voting  against  it,  and  the  vote  of 
Georgia  being  divided. 

As  soon,  however,  as  the  next  article  was  taken  up,  which  re- 
quired the  surrender  of  fugitives  from  justice  escaping  from  one 
state  into  another,  the  South  Carolina  members  moved  to  require 
fugitive  slaves  and  servants  to  be  delivered  up,  like  criminals.”  ' 
Objection  was  made  that  this  would  require  the  executive  of  the 
state  to  do  it  at  the  public  expense,"  and  that  there  was  no  more 
propriety  in  the  public  seizing  and  surrendering  a slave  or  a ser- 
vant, than  a horse.'  The  proposition  was  then  withdrawn,  in  order 
that  a particular  provision  might  be  framed,  apart  from  the  article 
requiring  the  surrender  of  fugitives  from  justice.  That  article  was 
then  adopted  without  opposition.' 

For  a provision  respecting  fugitives  from  service,  the  movers 
had  two  remarkable  precedents  to  which  they  could  resort,  and 
which  had  settled  the  correctness  of  the  principle  involved.  Aegro 
slavery,  as  well  as  other  forms  of  service,  had  existed  in  the  A ew 
England  colonies  at  a very  early  period.  In  1643  the  four  col- 
onies of  Massachusetts  Bay,  Plymouth,  Connecticut,  and  ~New 
Haven  had  formed  a confederation,  in  which,  among  other  things, 
they  had  mutually  stipulated  with  each  other  for  the  restoration 
of  runaway  “ servants and  there  is  indubitable  evidence  that 
African  slaves,  as  well  as  other  persons  in  servitude,  were  includ- 
ed in  this  provision. 

The  other  precedent  was  found  in  the  ordinance  which  had 
just  been  adopted  by  Congress  for  the  settlement  and  government 
of  the  territory  northwest  of  the  river  Ohio ; in  which,  when  leg- 
islating for  the  perpetual  exclusion  of  “slavery  or  involuntary 
servitude,”  a similar  provision  was  made  for  the  surrender  of  per- 
sons, escaping  into  the  territory,  “ from  whom  labor  or  service  is 
laAvfully  claimed  in  any  one  of  the  original  states.” 

In  making  this  provision  the  early  colonists  of  New  England, 
and  the  Congress  of  the  Confederation,  had  acted  upon  a princi- 
ple directly  opposite  to  the  objection  that  Avas  raised  in  the  forma- 
tion of  the  Constitution  of  the  United  States.  AUhen  it  A\as  said 


^ Madison,  ut  supra.  The  motion  was  made  by  Butler  and  Pinckney,  ac- 
cording to  Mr.  Madison. 

2 By  Wilson.  ' By  Sherman.  “ Madison,  nt  supra.  August  28. 


605 


FUGITIVES  FROM  SERVICE. 

in  the  Convention  that  tlie  public  authorityought  no  more  to  in- 
toi'fere  and  surrender  a fugitive  slave  or  servant  than  a horse,  it 
was  forgotten  that,  by  the  principles  of  the  common  law  and  the 
comity  of  nations,  not  only  is  property  in  movable  things  recoo-- 
inzed  by  civilized  states,  but  a remedy  is  afforded  for  restitution, 
but  in  the  case  of  a fugitive  person,  from  whom,  by  the  law  of 
the  community  from  which  he  escapes,  service  is  due  to  another, 
the  riglit  to  the  service  is  not  recognized  by  the  common  law  or 
the  law  of  nations,  and  no  means  exist  of  enforcing  the  duties  of 
the  relation.  If  the  case  is  to  be  met  at  all,  therefore,  it  can  only 
be  by  a s]iecial  provision,  in  the  nature  of  a treaty,  which  will  so 
far  admit  the  relation  and  the  claim  of  service  as  to  make  them 
t le  foundation  of  a right  to  restore  the  individual  to  the  jurisdic- 
tion of  that  law  which  recognizes  and  enforces  its  duties. 

This  was  precisely  what  was  done  by  the  New  Eno-land  Con- 
federation of  1613,  and  the  Ordinance  of  1787 ; and  it^was  what 
was  now  proposed  to  be  done  by  the  Constitution  of  the  United 
States.  It  was  regarded  at  the  time  by  the  Southern  States  as 
absolutely  necessary  to  secure  to  them  their  right  of  exclusive 
control  over  the  question  of  emancipation,'  and  it  was  adopted  in 
the  Convention  by  unanimous  consent,*  for  the  express  purpose  of 
protecting  a right  that  would  otherwise  have  been  without  a sat- 
islactory  security.  A proper  understanding  of  the  grounds  of 
this  somewhat  peculiar  provision  is  quite  important. 

The  publicists  of  Christendom  are  universally  agreed  that  in- 
ependent  nations  are  under  no  positive  obligation  to  support  the 
institutions,  or  to  enforce  the  municipal  laws,  of  each  other.  So 
tar  does  this  negative  principle  extend,  that  the  general  law  of 
nations  does  not  even  require  the  extradition  of  fugitive  criminals 
who  have  escaped  from  one  country  into  another.  If  compacts 
are  made  for  this  purpose  they  rest  entirely  upon  comity,  and 
upon  those  considerations  of  public  policy  which  make  it  expedi- 
ent to  expel  from  our  own  borders  those  who  have  violated  the 
great  laws  on  which  the  welfare  of  society  depends ; and  such 


lion  T’  Convention  of  Virginia  in  which  the  Constitu- 

on  was  ratified  that  - this  clause  was  e.vpressly  inserted  to  enable  owners  of 
slaves  to  reclaim  them.”  Elliot’s  Debates,  HI.  453. 

“ August  29th.  Elliot,  V.  492. 


CONSTITUTIONAL  HISTORY. 


GOG 

coinpn,cts  ar©  usually  limitsd  to  thos6  offoncos  whicli  imply  great 
moral  as  well  as  civil  guilt.  The  general  rule  is,  that  a nation  is 
not  obliged  to  surrender  those  who  have  taken  sanctuary  in  its 
dominions.  At  the  same  time  every  political  state  has  an  un- 
doubted right  to  forbid  the  entry  into  its  territories  of  any  per- 
son whose  presence  may  injure  its  welfare  or  thwart  its  policy. 
No  foreigner,  whether  he  comes  as  a fugitive  escaping  from  the 
violated  laws  of  another  country,  or  comes  for  the  innocent  pur- 
poses of  travel  or  residence,  can  demand  a sanctuary  as  a matter 
of  right.  Whether  he  is  to  remain,  or  not  to  remain,  depends 
entirely  upon  the  discretion  of  the  state  to  which  he  has  resorted 
—a  discretion  that  is  regulated  by  a general  principle  among 
Christian  nations,  while  at  the  same  time  the  general  principle  is 
subject  to  such  exceptions  as  the  national  interest  may  require  to 
be  established. 

Slavery,  or  involuntary  servitude,  being  considered  by  public 
law  as  contrary  to  natural  right,  and  being  a relation  that  de- 
pends wholly  on  municipal  law,  falls  entirely  within  the  principle 
which  relieves  independent  nations  of  the  obligation  to  support  or 
to  enforce  each  other’s  laws.  It  has  not,  therefore,  been  custom- 
ary for  states  which  have  no  peculiar  connection  to  surrender 
fugitives  from  that  relation,  or  to  do  anything  to  entoce  its  du- 
ties. But  such  fugitives  stand  upon  a precise  equality  with  all 
other  strangers  who  seek  to  enter  a society  of  which  they  are  not 
members.  If  the  welfare  of  the  society  demands  their  exclusion, 
or  if  it  may  be  promoted  by  a stipulation  that  they  shall  be  taken 
back  to  the  place  where  their  service  is  lawfully  due,  the  right  to 
exclude  or  to  surrender  them  is  perfect ; for  every  political  society 
has  the  moral  power,  and  is  under  a moral  obligation,  to  provide 
for  its  own  welfare.  If  such  stipulations  have  not  usually  been 
made  among  independent  nations,  their  absence  may  prove  that 
the  public  interest  has  not  required  them,  but  it  does  not  prove 

the  want  of  a right  to  make  them. 

Each  of  the  American  states,  when  its  people  adopted  the 
national  Constitution,  possessed  the  right  that  belongs  to  every 
political  society,  of  determining  what  persons  should  be  permitted 
to  enter  its  territories.  Each  of  them  had  a complete  right  to 
judge  for  itself  how  far  it  would  go,  in  recognizing  or  aiding  the 
laws  or  institutions  of  the  other  states.  It  is  obvious,  moreover, 


FUGITIVES  FROM  SERVICE.  (J07 

that  states  which  are  in  general  independent  of  each  other,  but 
whicli  propose  to  enter  into  national  relations  with  each  other 
under  a common  government,  for  certain  great  political  and  social 
ends,  may  have  reasons  for  giving  a particular  effect  to  each  oth- 
er’s institutions,  which  do  not  operate  with  societies  not  stand- 
ing in  such  a relation ; and  that  these  reasons  may  be  of  a char- 
acter so  grave  and  important  as  to  amount  to  a moral  obligation. 
Thus  independent  and  disconnected  nations  are  ordinarily  under 
no  obligation  to  support  or  guarantee  each  other’s  forms  of  gov- 
ernment. But  the  American  states,  in  entering  into  the  new 
Union  under  their  national  Constitution,  found  that  a republican 
form  of  government  in  every  state  was  a thing  so  essential  to  the 
welfare  and  safety  of  all  of  them  as  to  make  it  both  a necessity 
and  a duty  for  all  to  guarantee  that  form  of  government  to  each 
other.  In  the  same  waj’’,  although  nations  in  general  do  not  rec- 
ognize the  relation  of  master  and  servant  prevailing  by  the  law  of 
another  country,  so  far  as  to  stipulate  for  the  surrender  of  per- 
sons escaping  from  that  relation,  the  American  states  found  them- 
selves surrounded  by  circumstances  so  imperative  as  to  make  it 
both  a necessity  and  a duty  to  make  with  each  other  that  stipu- 
lation. These  circumstances  I shall  now  briefly  state. 

I have  already  referred  to  all  the  known  proceedings  in  the 
Convention  on  this  subject,  and  have  stated  to  what  extent  those 
proceedings  justify  the  opinion  that  the  Constitution  could  not 
ha\e  been  formed  without  this  provision.  But  there  is  higher  ev^- 
idence  both  of  its  necessity  and  its  propriety  than  anything  that 
may  have  been  said  by  individuals  or  delegations.  The  states 
were  about  to  establish  a more  perfect  union,  under  a peculiar 
form  of  national  government,  the  elfect  of  which  would  necessa- 
lil}'  bring  them  into  closer  relations  with  each  other,  multiplying 
greatly  the  means  and  opportunities  of  intercourse,  and  enabling 
them  to  act  on  each  other’s  internal  condition  with  an  influence 
that  would  be  nearly  irresistible,  unless  it  should  be  arrested  by 
constitutional  barriers.  Among  the  features  of  their  internal  con- 
dition the  relation  of  master  and  servant,  or  the  local  institution 
of  servitude,  was  one  that  must  either  be  placed  under  national 
cognizance,  or  be  left  exclusively  to  the  local  authority  of  each 
state.  There  was  no  middle  or  debatable  ground  which  it  could 
ivith  safety  be  suffered  to  occupy.  The  African  race,  although 


(jQg  CONSTITUTIONAL  HISTORY. 

scattered  throughout  all  of  the  states,  was  placed  in  very  different 
circumstances  in  different  parts  of  the  country.  There  could  have 
been  no  national  legislation  with  respect  to  that  race,  concerning 
the  time  or  mode  of  emancipation,  the  tenure  of  the  master’s 
right,  or  the  treatment  of  the  slave,  that  would  not  have  been 
forced  to  adapt  itself  to  an  almost  endless  variety  of  circumstances 
in  different  localities.  At  the  same  time  it  was  one  of  the  funda- 
mental principles  on  which  the  whole  Constitution  was  proposed 
to  be  founded,  that,  where  the  national  authority  could  not  fur- 
nish a uniform  rule,  its  legislative  power  was  not  to  extend.  What- 
ever required  one  rule  in  Massachusetts  and  another  rule  in  Vir- 
ginia for  the  exigencies  of  society  was  necessarily  left  to  the  sep- 
arate authority  of  the  respective  states.  It  was  upon  matters  on 
■which  the  states  could  not  legislate  alike,  but  on  which  the  na- 
tional power  could  furnish  a safe  and  advantageous  uniform  rule, 
that  the  want  of  a national  Constitution  was  felt,  and  for  these 
alone  was  its  legislative  power  to  be  created. 

We  may  suppose,  then,  that  the  framers  of  the  Constitution 
had  sought  to  bring  the  relation  of  master  and  servant,  or  the 
condition  of  the  African  race,  within  the  states,  under  the  cogni- 
zance of  national  legislation ; and  we  may  imagine,  for  the  pur- 
poses of  the  argument,  that  consent  had  been  given  by  every  one 
of  the  states.  The  power  must  have  remained  dormant,  or  its 
exercise  would  have  been  positively  mischievous.  It  never  could 
have  been  exercised  beneficially  for  either  of  the  two  races ; not 
only  because  it  could  not  have  followed  any  uniform  system,  but 
because  the  confusions  and  jealousies  which  must  have  attended 
any  attempt  to  legislate  specially  must  either  have  totally  ob- 
structed the  power,  or  must  have  made  its  exercise  absolutely 
iiernicious.  These  consequences,  which  the  least  reflection  will 
reveal,  may  serve  to  show  us,  far  better  than  any  declarations  or 
debates,  why  the  framers  of  the  Constitution  studiously  avoided 
acquiring  any  power  over  the  institution  of  slavery  in  the  states; 
why  the  representatives  of  one  class  of  states  could  not  have  con- 
sented to  give,  and  the  representatives  of  another  class  could  never 
have  desired  to  obtain,  such  a power  for  the  national  Constitution. 

Slavery  has  been  eliminated  from  the  social  system  of  every 
state  in  the  Union,  by  a process  very  different  from  any  that 
could  have  been  foreseen  at  the  time  of  the  formation  and  adop- 


apparp:nt  inconsistency. 


r>09 

tion  of  our  national  Constitution.  The  principle  which  lay  at  the 
ioumlation  of  the  arrangements  and  compromises  of  the  Constitu- 
tion was  that  to  secure  to  every  state  the  uncontrolled  right  to  reg- 
idate  the  civil  status  of  its  own  inhabitants  was  the  most  effectual 
means  to  guard  against  the  calamity  of  civil  war.  How,  notwith- 
standing the  force  and  necessity  of  this  safeguard,  a civil  war  was 
brought  about,  and  how  it  ended  in  the  sudden  abolition  of  sla- 
very  by  an  exertion  of  the  national  will,  thereby  displacing  its 
gradual  extinction  under  the  authority  of  each  state  in  which  it 
had  existed,  it  belongs  to  a subsequent  part  of  this  history  to  de- 
scribe. It  belongs,  also,  to  a future  chapter  to  consider  what,  if 
any,  degree  of  inconsistency,  moral  or  political,  ought  to  be  im- 
puted to  the  framers  of  the  Constitution  and  the  generation  which 
established  it,  because  they  confined  the  enjoyment  of  civil  rights 
to  a single  race  of  men,  instead  of  extending  them  to  all  men  of 
all  races. 


CHAPTEE  XXXII. 

Eeport  of  the  Committee  of  Detail,  concluded.  — Guarantee 
OF  Eepublican  Government  and  Internal  Tranquillity. — 
Oath  to  Support  the  Constitution. — Mode  of  Amendment. — 
Eatification  and  Establishment  of  the  Constitution. — Sign- 
ing BY  THE  Members  of  the  Convention.  . 

The  power  and  duty  of  the  United  States  to  guarantee  a re- 
publican foriu  of  governiuent  to  each  state,  and  to  protect  each 
state  against  invasion  and  domestic  violence,  had  been  declared 
by  a resolution,  the  general  purpose  of  which  has  been  already 
described.  It  should  be  said  here,  however,  that  the  objects  of 
such  a provision  were  two : first,  to  prevent  the  establishment  in 
any  state  of  any  form  of  government  not  essentially  republican  in 
its  character,  whether  by  the  action  of  a minority  or  of  a majority 
of  the  inhabitants ; second,  to  protect  the  state  against  invasion 
from  without,  and  against  every  form  of  domestic  violence.^  When 
the  committee  of  detail  came  to  give  effect  to  the  resolution,  they 
prepared  an  article  which  made  it  the  duty  of  the  United  States 
to  guarantee  to  each  state  a republican  form  of  government,  and 
to  protect  each  state  against  invasion,  without  any  application 
from  its  authorities ; and  to  protect  the  state  against  domestic 
violence,  on  the  application  of  its  legislature.^  No  change  was 
made  by  the  Convention  in  the  substance  of  this  article,  excepting 
to  provide  that  the  application,  in  a case  of  domestic  violence, 
may  be  made  by  the  executive  of  the  state  when  the  legislature 
cannot  be  convened.^ 

It  now  remains  for  me  to  state  what  appears  to  have  been  the 
meanino-  of  the  framers  of  the  Constitution,  embraced  in  these 


' Elliot,  V.  332,  333. 

s First  draft  of  the  Constitution,  Art.  XVIII.  Elliot,  V.  381. 
3 Constitution,  Art.  IV.  § 4. 


GUARANTEE  OF  REPUBLICAN  GOVERNMENT.  (3 1 1 

provisions.  It  is  appiirent,  tlien,  from  all  the  proceedings  and 
discussions  on  this  subject  that,  by  guaranteeing  a republican  form 
of  government,  it  was  not  intended  to  maintain  the  existing  con- 
stitutions of  the  states  against  all  changes.  This  would  have  been 
to  exercise  a control  over  the  sovereignty  of  the  people  of  a state, 
inconsistent  with  the  nature  and  purposes  of  the  Union.  The 
peo])le  must  be  left  entirely  free  to  change  their  fundamental  law, 
at  their  own  pleasure,  subject  only  to  the  condition  that  they  con- 
tinue the  republican  form  of  government.  The  question  arises 
then,  what  is  that  form  ? Does  it  imply  the  existence  of  some 
oi  gallic  law,  establishing  the  departments  of  a government  and 
prescribing  their  powers,  or  does  it  admit  of  a form  of  the  body 
politic  under  which  the  public  will  may  be  declared  from  time  to 
time,  either  with  or  without  the  agency  of  any  established  organs 
or  representatives?  Is  it  competent  to  a state  to  abolish  alto- 
gether that  body  of  its  fundamental  law  which  we  call  its  consti- 
tution, and  to  proceed  as  a mere  democracy,  enacting,  expounding, 
and  executing  laws  by  the  direct  action  of  the  people,  and  with- 
out the  intervention  of  any  representative  system  constituting 
what  is  known  as  a government  ? 

The  Constitution  of  the  United  States  assumes,  in  so  many  of 
its  provisions,  that  the  states  will  possess  organized  governments, 
in  which  legislative,  executive,  and  judicial  departments  will  be 
known  and 'established,  that  it  must  be  taken  for  granted  that  the 
existence  of  such  agents  of  the  public  will  is  a necessary  feature 
of  a state  government,  within  the  meaning  of  this  clause.  No 
state  could  participate  in  the  government  of  the  Union  without 
at  least  two  of  these  agents,  namely,  a legislature  and  an  execu- 
tive , for  the  people  of  a state,  acting  in  their  primary  capacitv, 
could  not  appoint  a senator  of  the  United  States ; nor  fill  a va- 
cancy in  the  office  of  senator ; nor  appoint  electors  of  the  presi- 
dent of  the  United  States,  without  the  previous  designation  by  a 
legislature  of  the  mode  in  which  such  electors  were  to  be  chosen ; 
nor  apply  to  the  government  of  the  United  States  to  protect  them 
against  ‘^domestic  violence,”  through  any  other  agent  than  the 
legislature  or  the  executive  of  the  state.  It  is  manifest,  therefore, 
that  each  state  must  have  a government,  containing  at  least  these 
distinct  departments ; and  whether  this  government  is  organized 
periodically,  under  mere  laws  perpetually  re-enacted,  and  subject 


G12 


CONSTITUTIONAL  HISTORY. 


to  perpetual  clianges  without  reference  to  forms,  or  under  stand- 
ing and  fundamental  laws,  changeable  only  in  a prescribed  form, 
and  being  so  far  what  is  called  a constitution,  it  is  apparent  that 
there  must  be  a “ form  of  government  ” possessed  of  these  distinct 
agencies. 

There  must  be,  moreover,  not  only  this  ''  form  of  government,” 
but  it  must  be  a ''  republican  ” form ; and  in  order  to  determine 
the  sense  in  which  this  term  qualifies  the  nature  of  the  govern- 
ment in  other  respects  besides  those  already  referred  to,  it  is  nec- 
essary to  take  into  view  the  previous  history  of  American  political 
institutions,  because  that  history  shows  what  is  meant,  in  the 
American  sense,  by  a “ republican”  government. 

History,  then,  establishes  the  fact  that,  in  the  American  sys- 
tem of  government,  the  people  are  regarded  as  the  sole  original 
source  of  all  political  authority  ; that  all  legitimate  government 
must  rest  upon  their  will.  But  it  also  teaches  that  the  will  of  the 
people  is  to  be  exercised  through  representative  forms.  For  even  in 
the  exercise  of  original  suffrage,  which  has  never  been  universal  in 
any  of  the  states  of  the  Union,  and  in  the  bestowal  of  power  upon 
particular  organs,  those  who  are  regarded  as  competent  to  express 
the  will  of  society  are,  in  tliat  expression,  deemed  to  represent  all 
its  members ; and  those  who,  in  the  distribution  of  political  func- 
tions, exercise  the  sovereignty  of  the  people  so  far  as  it  has  been 
thus  imparted  to  them,  exercise  a representative  function  to  which 
they  are  appointed,  directly  or  indirectly,  by  popular  suffrage, 
that  may  be  more  or  less  restricted,  according  to  the  public  will. 
It  may  be  said,  therefore,  with  strictness,  that  in  the  American 
system  a republican  government  is  one  based  on  the  right  of  the 
people  to  govern  themselves,  but  requiring  that  right  to  be  exer- 
cised through  public  organs  of  a representative  character  \ and 
these  organs  constitute  the  government.  How  much  or  how  little 
power  shall  be  imparted  to  this  government,  what  restrictions 
shall  be  imposed  upon  it,  and  what  the  precise  functions  of  its 
several  departments  shall  be,  with  respect  to  the  internal  concerns 
of  the  state,  the  Constitution  of  the  United  States  leaves  un- 
touched, except  in  a few  particulars.  It  merely  declares  that  a 
government  having  the  essential  characteristics  of  an  American 
republican  system  shall  be  guaranteed  by  the  United  States  ; that 
is  to  say,  that  no  other  shall  be  permitted  to  be  established. 


MODE  OF  AMENDMENT. 


013 


The  provision  by  which  the  state  is  protected  against  domestic 
violence  was  necessary  to  complete  the  republican  character  of 
the  system  intended  to  be  upheld.  The  Constitution  of  the  United 
States  assumes  tliat  the  governments  of  the  states,  existing  when 
it  goes  into  operation,  are  rightfully  in  the  exercise  of  the  author- 
ity of  the  state,  and  will  so  continue  until  they  are  changed.  But 
it  means  that  no  change  shall  be  made  by  force,  by  public  commo- 
tion, or  by  setting  aside  the  authority  of  the  existing  government. 
It  recognizes  the  right  of  that  government  to  be  protected  against 
domestic  violence ; in  which  expression  is  to  be  included  every 
species  of  force  directed  against  that  government,  excepting  the 
will  of  the  people  operating  to  change  it  through  the  forms  of 
constitutional  action. 

The  next  topic  on  which  the  Convention  was  required  to  act 
was  the  question  whether  the  Constitution  should  be  made  capa- 
ble of  amendment,  and  in  what  mode  amendments  were  to  be 
proposed  and  adopted.  The  Confederation,  from  its  nature  as  a 
league  between  states  otherwise  independent  of  each  other,  was 
made  incapable  of  alteration  excepting  by  the  unanimous  consent 
of  the  states.  It  affords  a striking  illustration  of  the  different 
character  of  the  government  established  by  the  Constitution  that 
a mode  was  devised  by  which  changes  in  the  organic  law  could 
become  obligatory  upon  all  the  states,  by  the  action  of  a less 
number  than  the  whole. 

The  frame  of  government  which  the  members  of  the  Conven- 
tion were  endeavoring  to  establish,  if  once  adopted,  was  to  endure, 
as  a continuing  power,  indefinitely ; and  that  it  might,  as  far  as 
possible,  be  placed  beyond  the  danger  of  destruction,  it  was  neces- 
sary to  make  it  subject  to  such  peaceful  changes  as  experience 
might  render  proper,  and  which,  by  being  made  capable  of  intro- 
duction by  the  organic  law  itself,  would  preserve  the  identity  of 
the  government.  The  existence  and  operation  of  a prescribed 
method  of  changing  particular  features  of  a government  mark 
the  line  between  amendment  and  revolution,  and  render  a re- 
sort to  the  latter,  for  the  purpose  of  melioration  or  reform,  save 
in  extreme  cases  of  oppression,  unnecessary.  According  to  our 
American  theory  of  government,  revolution  and  amendment  both 
rest  upon  the  doctrine  that  the  people  are  the  source  of  all  politi- 
cal power,  and  each  of  them  is  the  exercise  of  an  ultimate  right. 


CONSTITUTIONAL  HISTORY. 


GIT 

P>ut  this  right  is  exercised,  in  the  process  of  amendment,  in  a pre- 
scribed form,  which  preserves  the  continuity  of  the  existing  gov- 
ernment, and  changes  only  such  of  its  fundamental  rules  as  require 
revision,  Avithout  the  destruction  of  any  public  or  private  rights 
that  may  have  become  vested  under  the  former  rule.  Kevolution, 
on  the  contrary,  proceeds  without  form,  is  the  violent  disruption 
of  the  obligations  resting  on  the  authority  of  the  former  govern- 
ment, and  terminates  its  existence  often  Avithout  saving  any  of 
the  rights  Avhich  may  have  groAvn  up  under  it.  The  question, 
therefore,  Avhether  the  Constitution  should  be  made  capable  of 
amendment,  Avas  identical  Avith  the  question  Avhether  some  mode 
of  amending  it  should  be  prescribed  in  the  instrument  itself,  since, 
AAuthout  an  ascertained  and  limited  method  of  proceeding,  all 
change  becomes,  in  effect,  rcA^olution  ^ and  this  AA^as  accordingly, 
in  substance,  the  same  as  the  question  Avhether  revolution  should 
be  the  only  method  by  Avhich  the  American  people  could  ever 
modify  their  system  of  government,  Avhen  in  the  progress  of  time 
changes  might  become  indispensable. 

It  Avas  originally  proposed  in  the  ConAmntion  that  provision 
should  be  made  for  amending  the  Constitution  AAuthout  lequiring 
the  assent  of  the  national  legislature.'  But  this  Avas  justly  re- 
garded as  a Amry  important  question,  and  the  Convention  came  to 
no  other  decision,  Avhen  the  committee  of  detail  Avere  instructed, 
than- to  declare  that  proAUsion  ought  to  be  made  for  amending  the 
Constitution  AvheneAmr  it  should  seem  necessary."  The  mode  se- 
lected by  the  committee,  and  embraced  in  the  first  draft  of  the 
instrument,  A\ms  to  liaAm  a convention  called  by  the  Congress, 
Avhen  applied  for  by  the  legislatures  of  tAVO  thirds  of  the  states ; 
but  they  did  not  declare  Avhether  the  legislatures  Avere  to  propose 
amendments  and  the  Convention  Avas  to  adopt  them,  or  Avhether 
the  Convention  Avas  both  to  propose  and  adopt  them,  or  only  to 
propose  them  for  adoption  by  some  other  body  or  bodies  not 
specified.  Tliere  lay,  therefore,  at  the  basis  of  tliis  whole  subject, 
the  very  grave  question  Avhether  there  should  ever  be  another  na- 
tional convention,  to  act  in  any  manner  upon  or  in  reference  to 
the  national  Constitution,  after  its  adoption,  and,  if  so,  Avhat  its 
functions  and  authority  Avere  to  be.  There  Avould  follow,  also. 


1 Elliot,  V.  157. 


"Ibid.,  37G. 


p o E 1 i o F A .M  p:  n j)  m p:  n 'r. 


015 


the  further  question,  wlietlier  this  should  be  the  sole  method  in 
which  the  Constitution  should  be  made  capable  of  amendment. 
Several  reasons  concurred  to  render  it  highly  inexpedient  to  make 
a resort  to  a convention  the  sole  method  of  reaching  amendments, 
and  we  can  now  see  that  the  decision  that  was  made  on  this  sub- 
ject was  a wise  one.  It  was  a rare  combination  of  circumstances 
that  gave  to  the  first  national  Convention  its  success.  The  war 
of  the  Eevolution,  and  the  exigencies  which  it  caused,  had  pro- 
duced a class  of  men  possessing  an  influence,  as  well  as  qualifica- 
tions for  the  duty  assigned  to  them,  that  would  not  be  likely  to 
be  again  witnessed.  Of  these  men  Washington  was  the  head; 
and  no  second  Washington  could  be  looked  for.  The  peculiar 
crisis,  too,  occasioned  by  the  total  failure  of  the  Confederation, 
notwithstanding  the  apparent  fitness  and  actual  necessity  of  that 
government  at  the  time  of  its  formation,  could  never  occur  again. 
There  were,  moreover,  but  thirteen  states  in  the  Confederacy, 
nearly  all  of  which  dated  their  settlement  and  their  existence  as 
political  communities  from  about  the  same  period,  and  all  had 
passed  through  the  same  revolutionary  history.  But  the  number 
of  the  states  was  evidently  destined  to  be  greatly  increased,  and 
the  new  members  of  the  Union  would  also  be  likely  to  be  some- 
what different  in  character  from  the  old  states.  It  was  not  proba- 
ble, therefore,  that  the  time  would  ever  arrive  when  the  people  of 
the  United  States  would  feel  that  another  national  convention,  for 
the  purpose  of  acting  on  the  national  Constitution,  would  be  safe 
or  practicable.  Still,  it  would  not  have  been  proper  to  have  ex- 
cluded the  possibility  of  a resort  to  this  method  of  amendment ; 
since  the  national  legislature  might  itself  be  interested  to  perpetu- 
ate abuses  springing  from  defects  in  the  Constitution,  and  to 
incur  the  hazards  attending  a convention  might  become  a far  less 
evil  than  the  continuance  of  such  abuses,  or  the  failure  to  make 
the  necessary  reforms. 

But  it  was  indispensable  that  the  precise  functions  and  author- 
ity of  such  a convention  should  be  defined,  lest  its  action  might 
result  in  revolution.  The  method  of  amendment  proposed  by  the 
committee  of  detail  did  not  enable  the  Congress  to  call  a conven- 
tion on  their  own  motion,  and  did  not  prescribe  the  action  of  such 
a body,  or  provide  any  mode  in  which  the  amendments  proposed 
by  it  should  be  adopted.  Hamilton  and  Madison  both  opposed 


CIC) 


CONSTITUTIONAL  HISTORY. 

this  plan : the  former,  because  it  was  inadequate,  and  because  he 
considered  it  desirable  that  a much  easier  method  should  be  devised 
for  remedying  the  defects  that  would  become  apparent  in  the  new 
system ; the  latter,  on  account  of  the  vagueness  of  the  plan  itself. 
Accordingly  Mr.  Madison  brought  forward,  as  a substitute,  a 
method  of  proceeding  which,  with  some  modifications,  became 
what  is  now  the  fifth  article  of  the  Constitution;  namely,  that 
the  Congress,  whenever  two  thirds  of  both  houses  shall  deem  it 
necessary,  shall  propose  amendments  ; or,  on  the  application  of  the 
legislatures  of  two  thirds  of  the  states,  shall  call  a convention  for 
proposing  amendments.  In  either  case  the  amendments  proposed 
are  to  become  valid  as  part  of  the  Constitution,  when  ratified  by 
the  legislatures  of  three  fourths  of  the  states,  or  by  conventions  in 
three  fourths  of  the  states,  as  the  one  or  the  other  mode  of  ratifi- 
cation may  be  proposed  by  the  Congress.' 

But  when  this  provision  had  been  agreed  upon,  the  grave  ques- 
tion arose,  whether  the  power  of  amendment  was  to  be  subjected 
to  any  limitations.  There  were  two  objects  in  respect  to  which, 
as  we  have  more  than  once  had  occasion  to  see,  different  classes  of 
the  states  felt  great  jealousy.  One  of  them  had  been  covered  by 
the  stipulations  that  the  states  should  not  be  prohibited  before  the 
year  1808  from  admitting  further  importations  of  slaves,  and  that 
no  capitation  or  other  direct  tax  should  be  laid  unless  in  propor- 
tion to  the  census  or  enumeration  of  the  inhabitants  of  the  states, 
in  which  three  fifths  only  of  the  slaves  were  included.^  The  other 
was  the  equality  of  representation  in  the  Senate,  so  long  and  at 
lenc^th  so  successfully  contended  for  by  the  smaller  states.^  At 
the'^instance  of  Mr.  Kutledge  of  South  Carolina  a proviso  was 
added,  which  forbade  any  amendment  before  the  year  1808  affect- 
ing in’ any  manner  the  clauses  relating  to  the  slave-trade  and  the 
capitation  or  other  direct  taxes.^  This  proviso  having  now  become 
inoperative,  those  clauses  are,  like  others,  subject  to  amendment. 
At  the  instance  of  Mr.  Sherman  of  Connecticut  a restriction  that 
is  of  perpetual  force  was  placed  upon  the  power  of  amendment, 
which  prevents  each  state  from  being  deprived  of  its  equality  of 
representation  in  the  Senate  without  its  consent. 


* Constitution,  Art.  I.  § 0.  ^ Ibid.,  Art.  I.  § 3. 

Ibid.,  551,  552.  Constitution,  Art.  I.  § 8. 


1 Elliot,  V.  530-532. 
^ Elliot,  Y.  532. 


MODE  OF  RATIFICATION. 


617 


The  oath  or  affirmation  to  support  the  Constitution  was  pro- 
vided for  by  the  committee  of  detail,  in  accordance  with  the  res- 
olution directing  that  it  should  be  taken  by  the  members  of  both 
houses  of  Congress  and  of  the  state  legislatures,  and  by  all  execu- 
tive and  judicial  officers  of  the  United  States  and  of  the  several 
states ; and  for  the  purpose  of  forever  preventing  any  connection 
between  church  and  state,  and  any  scrutiny  into  men’s  religious 
opinions,  the  Convention  unanimously  added  the  clause,  that  ‘‘  no 
religious  test  shall  ever  be  required  as  a qualification  to  any  office 
or  public  trust  under  the  United  States.”  ' 

We  are  next  to  ascertain  in  what  mode  the  Constitution,  which 
had  thus  been  framed,  was  to  provide  for  its  own  establishment 
and  authority.  There  is  a great  difference  between  the  impor- 
tance of  this  question  as  it  presented  itself  to  the  framers  of  the 
Constitution,  and  its  importance  to  this  or  any  succeeding  genera- 
tion. To  us  it  is  chiefly  interesting  because  it  displays  the  basis 
of  a government  which  has  been  established  for  a century  over 
the  thirteen  original  states  of  the  Confederacy,  and  is  now  es- 
tablished over  thirty-eight.  To  those  who  made  the  Constitu- 
tion, and  to  the  people  who  were  to  vote  upon  it  and  to  put  it  in 
operation,  the  mode  in  which  it  was  to  become  the  organic  law 
of  the  Union  was  a topic  of  serious  import  and  delicacy.  It  in- 
volved the  questions,  of  what  course  would  be  politic  with  refer- 
ence to  the  people ; of  what  would  be  practicable ; of  the  initia- 
tion of  the  new  government  without  force ; of  its  establishment 
on  a firm,  just,  and  legitimate  authority ; and  of  its  right  to 
supersede  the  Confederation,  without  a breach  of  faith  towards 
the  members  of  that  body  by  whose  inhabitants  the  new  system 
might  be  rejected. 

The  Convention  had  alread}?-  decided  that  the  Constitution 
must  be  ratified  by  the  people  of  the  states ; but  a difficulty  had 
all  along  existed,  in  the  opinions  held  by  some  of  the  members  re- 
specting the  compact  then  subsisting  between  the  states,  which 
they  regarded  as  indissoluble  but  by  the  consent  of  all  the  parties 
to  it.  The  resolution,  which  the  committee  of  detail  were  in- 
structed to  carry  out,  had  declared  that  the  new  plan  of  govern- 
ment should  first  be  submitted  to  the  approbation  of  the  existing 


* Constitution,  Art.  VI. 


(318  CONSTITUTIONAL  HISTORY. 

Congress,  and  then  to  assemblies  of  representatives  to  be  recom- 
mended by  the  state  legislatures  and  to  be  expressly  chosen  by  the 
people  to  consider  and  decide  upon  it.  But  this  direction  embraced 
no  decision  of  the  question  whether  the  ratification  by  the  people 
of  a less  number  than  all  the  states  should  be  sufficient  for  putting 
the  government  into  operation.  If  the  people  of  a smaller  number 
than  the  whole  of  the  states  could  establish  this  form  of  govern- 
ment, what  was  to  be  its  future  relation  to  the  states  which  might 
reject  or  refuse  to  consider  it  ? Could  any  number  of  the  states 
thus  withdraw  themselves  from  the  Confederation,  and  establish 
for  themselves  a new  general  government,  and  could  that  govern- 
ment have  any  authority  over  the  rest  ? Y arious  and  widely  op- 
posite theories  were  maintained.  One  opinion  was  that  all  the 
states  must  accept  the  Constitution,  or  it  Avould  be  a nullity ; an- 
other, that  a majority  of  the  states  might  establish  it,  and  so  bind 
the  minority,  upon  the  principle  that  the  Union  was  a society  sub- 
ject to  the  control  of  the  greater  part  of  its  members ; still  another, 
that  the  states  Avhich  might  ratify  it  Avould  bind  themselves,  but 
no  one  else. 

The  truth  Avith  regard  to  these  questions,  Avhich  perplexed  the 
minds  of  men  in  that  assembly  someAvhat  in  proportion  to  their 
acuteness  and  their  proneness  to  metaphysical  speculations,  Avas  in 
reality  not  \"ery  far  off.  The  Articles  of  Confederation  had  cer- 
tainly declared  that  no  alteration  should  be  made  in  any  of  them, 
unless  first  proposed  by  the  Congress,  and  afterAvarcls  unanimously 
agreed  to  by  the  state  legislatures.  But  in  tAVO  yerj  important 
particulars  the  Convention  had  already  passed  beyond  Avhat  could 
be  deemed  an  alteration  of  those  articles.  They  had  prepared  and 
Avere  about  to  propose  a system  of  government  that  Avould  not 
merely  alter,  but  Avould  abolish  and  supersede,  the  Confederation  ; 
and  they  had  determined  to  obtain,  Avhat  they  regarded  as  a legit- 
imate authority  for  this  purpose,  the  consent  of  tlie  people  of  the 
states,  by  Avhose  Avill  the  state  governments  existed,  from  Avhom 
those  governments  derived  their  authority  to  enter  into  the  com- 
pact of  the  Confederation,  and  Avhose  sovereign  right  to  ameliorate 
their  oAvn  political  condition  could  not  be  disputed.  This  system 
they  intended  should  be  offered  to  all.  The  refusal  of  some  states 
to  accept  it  could  not,  upon  principles  of  natural  justice  and  right, 
oblige  the  others  to  remain  fettered  to  a government  Avhich  had 


MODE  OF  liATIFICATION.  (5I9 

been  ]>ronounced  by  twelve  of  tlie  thirteen  legislatures  to  be  de- 
fective and  inadequate  to  the  exigencies  of  the  Union.  At  the 
same  time  the  independent  iwlitioal  existence  of  tlie  people  of 
each  state  made  it  impossible  to  treat  them  as  a minoi'ity  subject 
to  the  power  of  such  majority  as  would  be  formed  by  tlie  states 
that  might  adopt  the  Constitution.  If  the  people  of  a state  should 
ratify  it,  they  would  be  bound  by  it.  If  they  should  refuse  to  rat- 
ify It,  they  would  simply  remain  out  of  the  new  union  that  would 
be  formed  by  the  rest.  It  was,  therefore,  determined  that  the 
Constitution  should  undertake  to  be  in  force  only  in  those  states 
by  whose  inhabitants  it  might  be  adopted.' 

Then  came  the  question,  in  what  mode  the  assent  of  the  peo- 
ple of  the  states  was  to  be  given.  The  constitution  of  one  of  the 
states  provided  that  it  should  be  altered  only  in  a prescribed 
mode ; and  it  was  said  that  the  adoption  of  the  Constitution  now 
proposed  would  involve  extensive  changes  in  the  constitution  of 
every  state.  This  was  equally  true  of  the  constitutions  of  those 
states  which  had  provided  no  mode  for  making  such  changes,  and 
in  which  the  state  officers  were  all  bound  by  oath  to  support  the 
existing  constitution.  These  difficulties,  however,  were  by  no 
means  insurmountable.  It  was  universally  acknowledged  that 
the  people  of  a state  were  the  fountain  of  all  political  power,  and 
if,  in  the  method  of  appealing  to  them,  the  consent  of  the  state 
government  that  such  appeal  should  be  made  were  involved,  there 
could  be  no  question  that  the  proceeding  would  be  in  accordance 
with  what  had  always  been  regarded  as  a cardinal  principle  of 
American  liberty.  For,  since  the  birth  of  that  liberty,  it  had 
been  always  assumed  that,  when  it  has  become  necessary  to  ascer- 
tain the  will  of  the  people  on  a new  exigency,  it  is  for  the  ex- 
isting legislative  power  to  provide  for  it  by  an  ordinary  act  of 
legislation.® 

Whatever  changes,  therefore,  in  the  state  constitutions  might 
become  necessary  in  consequence  of  the  adoption  of  the  national 
Constitution,  it  would  be  a just  presumption  that  the  will  of  the 
people,  duly  ascertained  by  their  legislature,  had  decided,  by  that 
adoption,  that  such  changes  should  be  made ; and  the  formal  act 
of  making  them  could  follow  at  any  time  when  arrangements 


' Elliot,  V.  499. 


’ Maryland. 


® Works  of  Daniel  Webster,  VI.  227. 


CONSTITUTIONAL  HISTORY. 


620 

might  b©  mad©  for  it.  But  if  no  mod©  of  ratificcition  of  th©  na- 
tional Constitution  w©r©  to  b©  pr©scrib©d,  and  it  w©r©  l©ft  to  ©ach 
stat©  to  act  upon  it  in  any  mann©r  that  it  might  pr©f©r,  th©r© 
would  b©  no  uniformity  in  th©  mod©  of  cr©ating  th©  n©w  gov©rn- 
m©nt  in  th©  diff©r©nt  stat©s ; and  if  th©  Conv©ntion  and  th©  Con- 
gr©ss  w©r©  to  r©f©r  its  adoption  to  th©  stat©  l©gislatur©s,  it  would 
not  r©st  on  th©  dir©ct  authority  of  th©  p©opl©.  For  th©s©  r©asons 
th©  Conv©ntion  adh©r©d  to  th©  plan  of  having  th©  Constitution 
submitted  directly  to  assemblies  of  representatives  of  th©  people 
in  ©ach  state,  chosen  for  th©  express  purpose  of  deciding  on  its 
adoption.' 

There  was  still  another  question,  of  great  practical  importance, 
to  be  determined.  Was  the  Constitution  to  go  into  operation  at 
all,  unless  adopted  by  all  the  states,  and  if  so,  what  number  should 
be  sufficient  for  its  establishment  ? It  appeared  clearly  enough 
that  to  require  a unanimous  adoption  would  defeat  all  the  labors 
of  the  Convention.  Khode  Island  had  taken  no  part  in  the  forma- 
tion of  the  Constitution,  and  could  not  be  expected  to  ratify  it. 
New  York  had  not  been  represented  for  some  weeks  in  the  Con- 
vention, and  it  was  at  least  doubtful  how  the  people  of  that  state 
would  receive  the  proposed  system,  to  which  a majority  of  their 
delegates  had  declared  themselves  to  be  strenuously  opposed.'* 
Maryland  continued  to  be  present  in  the  Convention,  and  a ma- 
jority of  her  delegates  still  supported  the  Constitution  ; but  Luther 
Martin  confidently  predicted  its  rejection  by  the  state,  and  it  was 
evident  that  his  utmost  energies  would  be  put  forth  against  it. 
Under  these  circumstances,  to  have  required  a unanimous  adop- 
tion by  the  states  would  have  been  fatal  to  the  experiment  of 
creating  a new  government.  Some  of  the  members  were  in  favor 
of  such  a number  as  would  form  both  a majority  of  the  states  and 
a majority  of  the  people  of  the  United  States.  But  there  was  an 


1 The  vote,  liowever,  was  only  six  states  to  four.  Elliot,  V.  500. 

2 Two  of  the  New  York  delegates,  Messrs.  Yates  and  Lansing,  left  the  Con- 
vention on  the  5th  of  July.  Hamilton  had  previously  returned  to  the  city  of 
New  York,  on  private  business.  He  left  June  29th  and  returned  August  13th. 
It  appears  from  his  correspondence  that  he  was  again  in  the  city  ot  New  York 
on  the  20th  of  August,  and  that  ho  remained  there  until  the  28th.  On  the  Gth 
of  September  he  was  in  the  Convention.  Tlie  vote  of  the  state  was  not  taken 
in  the  Convention  after  the  retirement  of  Yates  and  Lansing. 


now  AMENDMENTS  MIGHT  BE  MADE. 


fJ21 

idea  familiar  to  the  people,  in  the  number  that  had  been  rc(juired 
under  the  Confederation  upon  certain  questions  of  grave  im[)or- 
tance;  and  in  order  that  the  Constitution  might  avail  itself  of 
this  established  usage,  it  was  determined  that  the  ratifications  of 
the  conventions  of  nine  states  should  be  sufficient  to  establish  the 
Constitution  between  the  states  that  might  so  ratify  itd 

The  Constitution,  as  thus  finally  prepared,  received  the  formal 
assent  of  the  states  in  the  Convention,  on  the  last  day  of  the  ses- 
sion." The  great  majority  of  the  members  desired  that  the  in- 
strument should  go  forth  to  the  public,  not  only  with  an  official 
attestation  that  it  had  been  agreed  upon  by  the  states  represented, 
but  also  with  the  individual  sanction  and  signatures  of  their  dele- 
gates. Three  of  the  members  present,  however,  Eandoiph  and 
Mason  of  Virginia,  and  Gerry  of  Massachusetts,  notwithstanding 
the  proposed  form  of  attestation  contained  no  personal  approba- 
tion of  the  system,  and  signified  only  that  it  had  been  agreed  to 
by  the  unanimous  consent  of  the  states  then  present,  refused  to 
sign  the  instrument.'  The  objections  which  these  gentlemen  had 
to  different  features  of  the  Constitution  would  have  been  waived, 
if  the  Convention  had  been  Avilling  to  take  a course  quite  opposite 
to  that  which  had  been  thought  expedient.  They  desired  that 
the  state  conventions  should  be  at  liberty  to  propose  amendments, 
and  that  those  amendments  should  be  finally  acted  upon  by  an- 
other general  convention."  The  nature  of  the  plan,  however,  and 
the  form  in  which  it  was  to  be  submitted  to  the  people  of  the 
states,  made  it  necessary  that  it  should  be  adopted  or  rejected  as 
a whole,  by  the  convention  of  each  state.  As  a process  of  amend- 
ment by  the  action  of  the  Congress  and  the  state  legislatures  had 


1 Elliot,  V.  499-501.  The  article  embodying  this  decision  was  the  21st  in 
the  report  of  the  committee  of  detail.  It  became,  on  the  revision.  Article  VIII. 
of  the  Constitution. 

* September  17th. 

® This  form  of  attestation  had  been  adopted  in  the  hope  of  gaining  the  signa- 
tures of  all  the  members,  but  without  success. 

^ Mr.  Madison  has  given  the  principal  grounds  of  objection  Avhich  these  gen- 
tlemen felt  to  the  Constitution.  It  is  not  necessary  to  repeat  them  here,  as  they 
were  nearly  all  met  by  the  subsequent  amendments,  so  far  as  they  were  special, 
and  did  not  relate  to  the  general  tendency  of  the  system.  See  Madison,  Elliot 
V.  552-558.  ’ ’ 


G22 


CONSTITUTIONAL  HISTORY. 


been  provided  in  the  instrument,  there  was  the  less  necessity  for 
holding  a second  convention.  The  state  conventions  would  ob- 
viously be  at  liberty  to  propose  amendments,  but  not  to  make 
them  a condition  of  their  acceptance  of  the  government,  as  pro- 
posed. 

A letter  having  been  prepared  to  accompany  the  Constitution, 
and  to  present  it  to  the  consideration  and  action  of  the  existing 
Congress,  the  instrument  was  formally  signed  by  all  the  other 
members  then  present.  The  official  record  sent  to  the  Congress 
of  the  resolutions  Avhich  directed  that  the  Constitution  be  laid 
before  that  body,  recited  the  presence  of  the  states  of  New  Hamp- 
shire, Massachusetts,  Connecticut,  New  Jersey,  Pennsylvania,  Dela- 
ware, Maryland,  Virginia,  North  Carolina,  South  Carolina,  and 
Georgia.  New  York  was  not  regarded  as  officially  present  5 but 
in  order  that  the  proceedings  might  have  all  the  weight  that  a 
name  of  so  much  importance  could  give  to  them,  in  the  place  that 
should  have  been  filled  by  his  state  was  recited  the  name  of  Mr. 
Hamilton  from  New  York.”  The  prominence  thus  given  to  the 
name  of  Hamilton,  by  the  absence  of  his  colleagues,  was  signifi- 
cant of  the  part  he  was  to  act  in  the  great  events  and  discussions 
that  were  to  attend  the  ratification  of  the  instrument  by  the  states. 
His  objections  to  the  plan  were  certainly  not  less  grave  and  im- 
portant than  those  which  were  entertained  by  the  members  A\ho 
refused  to  give  to  it  their  signatures  ; but  like  Madison,  like  Pinck- 
ney and  Franklin  and  Washington,  he  considered  the  choice  to 
be  between  anarchy  and  convulsion,  on  the  one  side,  and  the 
chances  of  good  to  be  expected  of  this  plan,  on  the  other.  Upon 
this  issue,  in  truth,  the  Constitution  went  to  the  people  of  the 
United  States.  There  is  a tradition  that  when  Washington  was 
about  to  sign  the  instrument,  he  rose  from  his  seat,  and,  holding 
the  pen  in  his  hand,  after  a short  pause,  pronounced  these  words : 
Should  the  states  reject  this  excellent  Constitution,  the  proba- 
bility .is  that  an  opportunity  will  never  again  offer  to  cancel  an- 
other in  peace— the  next  will  be  drawn  in  blood.”  * 

1 My  authority  for  this  anecdote  is  the  Pennsylvania  Journal  of  November 
14th,  1787,  where  it  was  stated  by  a writer  who  dates  his  communication  from 
Elizabethtown,  November  7th. 


CHAPTEE  XXXIII. 

Geneeal  Eeception  oe  the  Constitution. — Hopes  of  a Eeunion 
WITH  Geeat  Beitain.  — Action  of  the  Congeess.  — State  of 
Feeling  in  Massachusetts,  Xew  Yoek,  Yieginia,  South  Caeo- 
LiNA,  Maeyland,  and  Xew  IIampshiee. — Appointment  of  theie 
Conventions. 

The  national  Convention  was  dissolved  on  the  14th  of  Sep- 
tember. The  state  of  expectation  and  anxiety  throughout  the 
country  during  its  deliberations,  and  at  the  moment  of  its  adjourn- 
ment, will  appear  from  a few  leading  facts  and  ideas,  which  illus- 
trate the  condition  of  the  popular  mind  when  the  Constitution 
made  its  appearance. 

The  secrecy  with  which  the  proceedings  of  the  Convention 
had  been  conducted,  the  nature  of  its  business,  and  the  great  emi- 
nence and  personal  influence  of  its  principal  members,  had  com- 
bined to  create  the  deepest  solicitude  in  the  public  mind  in  all  the 
chief  centres  of  population  and  intelligence  throughout  the  Union. 
An  assembly  of  many  of  the  wisest  and  most  distinguished  men 
in  America  had  been  engaged  for  four  months  in  preparing  for 
the  United  States  a new  form  of  government,  and  the  public  had 
acquired  no  definite  knowledge  of  their  transactions,  and  no  in- 
formation respecting  the  nature  of  the  system  they  were  likely  to 
propose.  Under  these  circumstances  we  may  expect  to  find  the 
most  singular  rumors  prevailing  during  the  session  of  the  Conven- 
tion, and  a great  excitement  in  the  public  mind  in  many  localities, 
when  the  result  was  announced.  Among  the  reports  that  were 
more  or  less  believed  through  the  latter  part  of  the  summer,  was 
the  idle  one  that  the  Convention  were  framing  a system  of  mo- 
narchical government,  and  that  “the  Bishop  of  Osnaburg”  was  to 
be  sent  for,  to  be  the  sovereign  of  the  new  kingdom. 

Foolish  as  it  may  appear  to  us,  this  story  occasioned  some  real 
alarm  in  its  day.  It  is  to  be  traced  to  a favorite  idea  of  that  class 


G24: 


CONSTITUTIONAL  HISTORY. 


of  Americans  who  had  either  been  avowed  “ Tories”  during  the 
lievolution,  or  had  secretly  felt  a greater  sympathy  with  the 
motlier  country  than  with  the  land  of  their  birth,  and  wlio  were 
at  this  period  generally  called  “ Loyalists.”  Some  of  these  per- 
sons had  taken  no  part,  on  either  side,  during  the  Revolutionary 
war,  and  had  abstained  from  active  participation  in  public  affairs 
since  the  peace.  They  were  all  of  that  class  of  minds  whose  ten- 
dencies led  them  to  the  belief  that  the  materials  for  a safe  and 
efficient  republican  government  were  not  to  be  found  in  these 
states,  and  that  the  public  disorders  could  be  corrected  only  by  a 
government  of  a very  different  character.  Their  feelings  and 
opinions  carried  them  towards  a reconciliation  with  England,  and 
their  grand  scheme  for  this  purpose  was  to  invite  hither  the  titu- 
lar Bishop  of  Osnaburg.' 


I It  may  be  amusing  to  Americans  of  tl.is  and  future  generations  to  know 
wlio  tiiis  personage  was  for  wliom  it  was  rumored  tliat  tlie  Loyalists  desired  to 
“ send  ” and  whose  advent  as  a possibie  ruler  of  this  country  was  a v.ague  appre- 
hension in  the  popular  mind  for  a good  while,  and  finally  came  to  be  imputed 
as  a project  to  the  framers  of  the  Constitution.  The  Bishop  of  Osnaburg  was 
no  other  tlian  the  Duke  of  York,  Frederick,  tlie  second  son  of  King  George 
III  • a prince  wliose  conduct  as  conimaiider-in-cliief  of  the  army,  in  consequence 
of  t’lie  sale  of  commissions  by  ids  mistress,  one  Mrs.  Clarke,  became  in  1809  a 
suluect  of  inquiry,  leading  to  the  most  scandalous  revelations  before  the  House 
of  Commons.  Tlie  duke  was  born  in  1763,  and  was  consequently,  at  the  period 
spoken  of  in  the  text,  at  the  age  of  twenty-four.  IViieii  about  a year  old 
( 1764).  he  was  chosen  Bisliop  of  Osnaburg.  This  was  a German  province  (Osiia- 
briick)  formeriy  a bishopric  of  great  antiquity,  founded  by  Charlemagne.  At  the 
Reformation  most  of  tlie  inhabitants  became  Lutiierans,  and  by  tlie  Treaty  of 
Westphalia  it  was  agreed  that  it  shouid  lie  governed  alternately  by  a Roman 
Catholic  and  a Protestant  bishop.  In  1803  it  was  secularized,  and  assigned  .as 
an  hereditary  principality  to  George  III.,  in  his  capacity  of  King  of  Hanover. 
Prince  Frederick  continued  to  be  called  by  the  title  of  Bishop  of  Osnaburg,  un- 
til he  was  created  Duke  of  York.  I am  not  aware  that  the  whispers  of  his  name 
in  the  secret  councils  of  our  Loyalists,  as  a proposed  king  for  America,  became 
known  in  England.  Whether  sucli  knowledge  would  have  excited  a smile,  or 
have  awakened  serious  hopes,  is  a question  on  which  the  reader  can  speculate. 
But  it  is  certain  that  there  were  persons  in  this  country,  and  in  the  neigliboring 
British  provinces,  who  had  long  lioped  for  a reunion  of  the  American  states 
with  the  parent  country,  tlirough  this  or  some  other  “ mad  project.  Colone 
Humphreys  (who  had  been  one  of  Wasliington’s  aides),  writing  to  Hanul  on, 
from  New  Haven,  under  date  of  September  16th.  1787,  says:  “The  quondmn 
Tories  have  undoubtedly  conceived  hopes  of  a future  union  with  Gieat  Biitaiii, 


PUBLIC  impatip:nce. 


025 


Their  numbers  were  not  large  in  any  of  the  states;  but  the 
feeling  of  insecurity  and  the  dread  of  impending  anarchy  were 
shared  by  others  who  had  no  particular  inclination  towards  Eng- 
land ; and  it  is  not  to  be  doubted  that  the  Constitution,  among 
the  other  mischiefs  which  it  averted,  saved  the  country  from  a 
desperate  attempt  to  introduce  a form  of  government  which  must 
have  been  crushed  beneath  commotions  that  would  have  made  all 
government,  for  a long  time  at  least,  impracticable.  The  public 
anxiety,  created  by  the  reports  in  circulation,  had  reached  such  a 
point  in  the  month  of  August— when  it  was  rumored  that  the 
Convention  had  recently  given  a higher  tone  to  the  system  they 
were  preparing — that  members  found  it  necessary  to  answer  nu- 


from  the  inefficaoy  of  our  government,  and  tiie  tumults  which  prevailed  during 
the  last  winter.  I saw  a letter,  written  at  that  period,  by  a clergyman  of  con- 
siderable reputation  in  Nova  Scotia,  to  a person  of  eminence  in  this  state,  stating 
the  impossibility  of  our  being  happy  under  our  present  constitution,  and  pro- 
posing (now  we  could  think  and  argue  calmly  on  all  the  consequences),  that  the 
etforts  of  the  moderate,  the  virtuous,  and  the  brave  should  be  exerted  to  effect 
a reunion  with  the  parent  state.  ...  It  seems,  by  a conversation  I have  had 
here,  that  the  ultimate  practicability  of  introducing  the  Bishop  of  Osnaburg  is 
not  a novel  idea  among  those  who  were  formerly  termed  Loyalists.  Ever  since 
the  peace  it  has  been  occasionally  talked  of  and  wished  for.  Yesterdav,  where 
I dined,  half  jest,  half  earnest,  he  was  given  as  the  first  toast.  I leave  you  now, 
my  dear  friend,  to  reflect  how  ripe  we  are  for  the  most  mad  and  ruinous  project 
that  can  be  suggested,  especially  when,  in  addition  to  this  view,  we  take  into 
consideration  how  thoroughly  the  patriotic  part  of  the  community,  the  friends 
of  an  efficient  government,  are  discouraged  with  the  present  system,  and  irritated 
at  the  popular  demagogues  who  are  determined  to  keep  themselves  in  office,  at 
the  risk  of  everything.  Thence  apprehensions  are  formed  that,  though  the 
measures  proposed  by  the  Convention  may  not  be  equal  to  the  wishes  of  the 
most  enlightened  and  virtuous,  yet  that  they  will  be  too  high-toned  to  be 
adopted  by  our  popular  assemblies.  Should  that  happen,  our  political  ship  will 
be  left  afloat  on  a sea  of  chance,  without  a rudder  as  well  as  without  a pilot.” 
(Works  of  Hamilton,  I.  443.)  In  a grave  and  comprehensive  private  memoran- 
dum, drawn  up  by  Hamilton  soon  after  the  Constitution  appeared,  in  which  he 
summed  up  the  probabilities  for  and  against  its  adoption,  and  the  consequences 
of  its  rejection,  the  following  occurs,  as  among  the  events  likely  to  follow  such 
rejection  : “ A reunion  with  Great  Britain,  from  universal  disgust  at  a state  of 
commotion,  is  not  impossible,  though  not  much  to  be  feared.  The  most  plausi- 
ble shape  of  such  a business  would  be  the  establishment  of  a son  of  the  present 
monarch  in  the  supreme  government  of  this  country,  with  a family  compact.” 
(Works,  II.  419,  421.) 

I.— 40 


G26 


CONSTITUTIONAL  HISTORY. 


m6rous  letters  of  inquiry  from  persons  who  had  become  honestly 
alarmed.  “ Though  we  cannot  affirmatively  tell  you,”  was  their 
answer,  what  we  are  doing,  we  can  negatively  tell  you  what  we 
are  not  doing — we  never  once  thought  of  a king.”  ' 

All  doubt  and  uncertainty  were  dispelled,  however,  by  the 
publication  of  the  Constitution  in  the  newspapers  of  Philadelphia, 
on  the  19th  of  September.  It  was  at  once  copied  into  the  princi- 
pal journals  of  all  the  states,  and  was  perhaps  as  much  read  by 
the  people  at  large  as  any  document  could  have  been  in  the  con- 
dition of  the  means  of  public  intelligence  which  a very  imperfect 
post-office  department  then  afforded.  It  met  everywhere  with 
warm  friends  and  warm  opponents ; its  friends  and  its  opponents 
being  composed  of  various  classes  of  men,  found,  in  different  pro- 
portfons,  in  almost  all  of  the  states.  Those  who  became  its  advo- 
cates were,  first,  a large  body  of  men,  who  recognized,  or  thought 
they  recognized,  in  it  the  admirable  system  which  it  in  fact  proved 
to  be  when  put  into  operation ; secondly,  those  who,  like  most  of 
the  statesmen  who  made  it,  believed  it  to  be  the  best  attainable 
government  that  could  be  adopted  by  the  people  of  the  United 
States,  overlooking  defects  which  they  acknowledged,  or  trusting 
to  the  power  of  amendment  which  it  contained  ; and,  thirdly,  the 
mercantile  and  manufacturing  classes,  who  regarded  its  commer- 
cial and  revenue  powers  with  great  favor.  Its  adversaries  v\  ere 
those  who  had  always  opposed  any  enlargement  of  the  federal 
system;  those  whose  consequence  as  politicians  would  be  dimin- 
ished by  the  establishment  of  a government  able  to  attract  into 
its  service  the  highest  classes  of  talent  and  character,  and  present- 
ing a service  distinct  from  that  of  the  states ; those  who  conscien- 
tiously believed  its  provisions  and  powers  dangerous  to  the  rights 
of  the  states  and  to  public  liberty;  and,  finally,  those  who  Avere 
opposed  to  any  government,  Avhether  state  or  national  or  federal, 
that  would  have  vigor  and  energy  enough  to  protect  the  rights  of 
property,  to  prevent  schemes  of  plunder  in  the  form  of  paper 
money,  and  to  bring  about  the  discharge  of  public  and  private 
debts.  The  different  opponents  of  the  Constitution  being  ani- 
mated by  these  various  motives,  great  care  should  be  taken  by 
posterity,  in  estimating  the  conduct  of  individuals,  not  to  con- 


Pennsylvaniu  Journal,  August  22(1,  1787. 


“FEDERALISTS”  AND  “ANTI-FEDERALISTS.”  G27 

found  these  classes  witli  each  other,  although  they  wei*e  often 
united  in  jiction. 

As  the^Coustitution  presented  itself  to  the  people  in  the  light 
of  a proposal  to  enlarge  and  reconstruct  the  system  of  the  federal 
Union,  its  advocates  became  known  as  the  “ Federalists,”  and  its 
adversaries  as  the  ‘‘  Anti-Federalists.”  This  celebrated  designa- 
tion of  Federalist,  which  afterwards  became  so  renowned  in  our 
political  history  as  the  name  of  a party,  signified  at  first  nothing 
more  than  was  implied  in  the  title  of  the  essays  which  passed 
under  that  name,  namely,  an  advocacy  of  the  Constitution  of  the 
United  States.’ 


' The  history  of  the  term  “ Federal,”  or  “ Federalist,”  offers  a curious  illustra- 
tion ot  the  capricious  changes  of  sense  which  political  designations  often  undergo, 
within  a sliort  period  of  time,  according  to  the  accidental  circumstances  which 
give  them  their  application.  During  the  discussions  of  the  Convention  which 
framed  the  Constitution  of  the  United  States,  the  federal  was  employed  in 
its  truly  philosophic  sense,  to  designate  the  nature  of  the  government  estab- 
lished by  the  Articles  of  Confederation,  in  distinction  from  a national  system, 
that  would  be  formed  by  the  introduction  of  the  plan  of  having  the  states  rep- 
resented in  the  Congress  in  proportion  to  the  numbers  of  their  inhabitants.  But 
when  tlie  Constitution  was  before  the  people  of  the  states  for  their  adoption,  its 
friends  and  advocates  were  popularly  called  Federalists,  because  tliey  favored 
an  enlargement  of  the  federal  government  at  the  expense  of  some  part  of  the 
state  sovereignties,  and  its  opponents  were  called  Anti-Federalists.  In  this  use 
the  former  term  in  no  way  characterized  the  nature  of  the  system  advocated, 
but  merely  designated  a supporter  of  the  Constitution.  A few  years  later,  when 
the  first  parties  were  formed,  in  the  first  term  of  Washington’s  administration. 
It  so  happened  that  the  leading  men  who  gave  a distinct  character  to  the  devel- 
opment which  the  Constitution  then  received  had  been  prominent  advocates  of 
its  adoption,  and  had  been  known,  therefore,  as  Federalists,  as  had  also  been  the 
case  with  some  ot  those  who  separated  themselves  from  this  body  of  persons 
and  formed  what  was  termed  the  Republican,  afterwards  the  Democratic  party. 
But  the  prominent  supporters  of  the  policy  which  originated  in  Washington’s  ad- 
ministiation  continued  to  be  called  Federalists,  and  the  term  thus  came  to  denote 
a particular  school  of  politics  under  the  Constitution,  although  it  previously  sig- 
nified merely  an  advocacy  of  its  adoption.  Thus,  for  example,  Hamilton,  in  1787, 
Avas  no  Federalist,  because  he  was  opposed  to  the  continuance  of  a federal,  and 
desired  the  establishment  of  a national  government.  In  1788  he  was  a Federal- 
ist, because  he  wished  the  Constitution  to  be  adopted ; and  he  afterwards  con- 
tinued to  be  a Federalist,  because  he  favored  a particular  policy  in  the  adminis- 
tration of  the  government,  under  the  .Constitution.  It  was  in  this  latter  sense 
that  the  term  became  so  celebrated  in  our  political  history.  The  reader  will 


CONSTITUTIONAL  HISTORY. 


()28 

Midway  between  the  active  friends  and  o]:>ponents  of  the  Con- 
stitution lay  that  great  and  somewhat  inert  mass  of  the  people, 
which,  in  all  free  countries,  finally  decides  by  its  preponderance 
every  seemingly  doubtful  question  of  political  changes.  It  was 
composed  of  those  who  had  no  settled  convictions  or  favorite 
theories  respecting  the  best  form  of  a general  government,  and 
Avho  were  under  the  influence  of  no  other  motive  than  a desire  for 
some  system  that  would  relieve  their  industry  from  the  oppressions 
under  which  it  had  long  labored,  and  would  give  security,  peace, 
and  dignity  to  their  country.  Ardently  attached  to  the  princi- 
ples of  republican  government  and  to  their  traditionary  maxims 
of  public  liberty,  and  generally  feeling  that  their  respective  states 
were  the  safest  depositaries  of  those  principles  and  maxims,  this 
portion  of  the  people  of  the  United  States  were  likely  to  be  much 
influenced  by  the  arguments  against  the  Constitution  founded  on 
its  want  of  what  was  called  a Bill  of  Bights,  on  its  omission  to 
secure  a trial  by  jury  in  civil  cases,  and  on  the  other  alleged  de- 
fects which  were  afterwards  corrected  by  the  first  ten  amend- 
ments. But  they  had  great  confidence  in  the  principal  framers 
of  the  instrument,  an  unbounded  reverence  for  AVashington  and 
Franklin,  and  a willingness  to  try  any  experiment  sanctioned  by 
men  so  illustrious  and  so  entirely  incapable  of  any  selfish  or  un- 
worthy purpose.*  There  were,  however,  considerable  numbers  of 
the  people,  in  the  more  remote  districts  of  several  of  the  states, 
who  had  a very  imperfect  acquaintance,  if  they  had  any,  with  the 
details  of  the  proposed  system,  at  the  time  when  their  legislatures 
were  called  upon  to  provide  for  the  assembling  of  conventions ; 
for  we  are  not  to  suppose  that  what  would  now  be  the  general 
and  almost  instantaneous  knowledge  of  any  great  political  event 
or  topic  could  have  taken  place  at  that  day  concerning  the  pro- 
posed Constitution  of  the  United  States.  Still  it  was  quite  gener- 
ally understood  before  its  final  ratification  in  the  states  where  its 

observe  that  I use  it,  in  this  part  of  my  work,  only  in  the  sense  attached  to  it 
wliile  the  Constitution  was  before  the  people  ef  the  states  for  adoption. 

1 A striking  proof  of  the  importance  attached  by  the  people  to  the  opinions 
of  Washington  and  Franklin  may  be  found  in  a controversy  carried  on  for  a 
short  time  in  the  newspapers  of  Philadelphia  and  New  York,  after  the  Constitu- 
tion appeared,  whether  those  distinguished  persons  really  a'pyvoted  what  they 
had  signed. 


RISKS  ENCOUNTERED  RY  THE  CONSTITUTION.  C29 

adoption  was  postponed  to  the  following  year,  where  information 
was  most  wanted,  and  where  the  chief  struggles  occurred  ; and  it 
is  doubtless  correct  to  assert  that  its  adoption  was  the  intelligent 
choice  of  a majority  of  the  people  of  each  state,  as  well  as  the 
choice  of  their  delegates,  when  their  conventions  successively  act- 
ed upon  it. 

On  the  adjournment  of  the  Convention,  Madison,  King,  and 
Gorham,  who  held  seats  in  the  Congress  of  the  Confederation, 
hastened  to  the  city  of  Kew  York,  where  that  body  was  then  sit- 
ting. They  found  eleven  states  represented.'  But  they  found 
also  that  an  effort  was  likely  to  be  made,  either  to  arrest  the  Con- 
stitution on  its  way  to  the  people  of  the  states,  or  to  subject  it  to 
alteration  before  it  should  be  sent  to  the  legislatures.  It  was  re- 
ceived by  official  communication  from  the  Convention  in  about 
ten  days  after  that  assembly  was  dissolved.  All  that  was  asked 
of  the  Congress  was  that  they  should  transmit  it  to  their  constit- 
uent legislatures  for  their  action.  The  old  objection,  that  the 
Congress  could  with  propriety  participate  in  no  measure  designed 
to  change  the  form  of  a government  which  they  were  appointed 
to  administer,  having  been  answered,  Kichard  Henry  Lee  of  Vir- 
ginia proposed  to  amend  the  instrument  by  inserting  a Bill  of 
Bights,  trial  by  jury  in  civil  cases,  and  other  provisions  in  con- 
formity Avith  the  objections  which  had  been  made  in  the  Conven- 
tion by  Mr.  Mason. 

To  the  address  and  skill  of  Mr.  Madison,  I think,  the  defeat  of 
this  attempt  must  be  attributed.  If  it  had  succeeded  the  Consti- 
tution could  never  have  been  adopted  by  the  necessary  number  of 
states ; for  the  recommendation  of  the  Convention  did  not  make 
the  action  of  the  state  legislatures  conditional  upon  their  receiv- 
ing the  instrument  from  the  Congress ; the  legislatures  Avould 
have  been  at  liberty  to  send  the  document  published  by  the  Con- 
vention to  the  assemblies  of  delegates  of  the  people,  Avithout  add- 
ing proAusions  that  might  have  been  added  by  the  Congress  ; some 
of  them  Avould  have  done  so,  while  others  Avould  have  followed 
the  action  of  the  Congress,  and  thus  there  would  haA^e  been  in 
fact  tAvo  Constitutions  before  the  people  of  the  states,  and  their 
acts  of  ratification  Avould  have  related  to  dissimilar  instruments. 


’ All  but  Maryland  and  Rhode  Island. 


CONSTITUTIONAL  HISTORY. 


G30 

This  consideration  induced  the  Congress,  by  a unanimous  vote  of 
the  states  present,  to  adopt  a resolution  which,  while  it  contained 
no  approval  of  the  Constitution,  abstained  from  interfering  with 
it  as  it  came  from  the  Convention,  and  transmitted  it  to  the  state 
legislatures,  in  order  to  be  submitted  to  a convention  of  dele- 
gates chosen  in  each  state  by  the  people  thereof,  in  conformity  to 
the  resolves  of  the  Convention  made  and  provided  in  that  case.”  * 
In  Massachusetts  the  Constitution  was  well  received,  on  its 
first  publication,  so  far  as  its  friends  in  the  central  portion  of  the 
Union  could  ascertain.  Mr.  Gerry  was  a good  deal  censured  for 
refusing  to  sign  it,  and  the  public  voice,  in  Boston  and  its  neigh- 
borhood, appeared  to  be  strongly  in  its  favor.  But  in  a very 
short  time  three  parties  were  formed  among  the  people  of  the 
state,  in  such  proportions  as  to  make  the  result  quite  uncertain. 
The  commercial  classes,  the  men  of  property,  the  clergy,  the  mem- 
bers of  the  legal  profession,  including  the  judges,  the  ofiicers  of 
the  late  army,  and  most  of  the  people  of  the  large  towns,  were 
decidedly  in  favor  of  the  Constitution.  This  party  amounted  to 
three  sevenths  of  the  people  of  the  state.  The  inhabitants  of  the 
district  of  Maine,  who  were  then  looking  forward  to  the  formation 
of  a new  state,  would  be  likely  to  vote  for  the  new  Constitution, 
or  to  oppose  it,  as  they  believed  it  would  facilitate  or  retard  theii 
wishes ; and  this  party  numbered  two  sevenths.  The  third  party 
consisted  of  those  who  had  been  concerned  in  the  late  insurrec- 
tion under  Shays,  and  their  abettors;  the  majority  of  them  desir- 
ing the  annihilation  of  debts,  public  and  private,  and  believing 
that  the  proposed  Constitution  would  strengthen  all  the  rights  of 
property.  Their  numbers  were  estimated  at  two  sevenths  of  the 
people."  It  was  evident*  that  a union  of  the  first  two  parties 
would  secure  the  ratification  of  the  instrument,  and  a union  of  the 
last  two  Avould  defeat  it.  Great  caution,  conciliation,  and  good 
temper  were,  therefore,  required,  on  the  part  of  its  friends.  The 
influence  of  Massachusetts  on  Virginia,  on  New  York,  and  indeed 
on  all  the  states  that  were  likely  to  act  after  her,  would  be  of  the 
utmost  importance.  The  state  convention  was  ordered  to  assem- 
ble in  January.  

* Piissetl  September  28tli,  1787.  Journals,  NIL  149-1G6. 

2 Tliis  is  the  substance  of  a careful  account  given  by  General  Knox  to  Wash- 
ington, ^Yorks  of  Washington,  IX.  olO,  311. 


PRO  B ABILITIES  IN  NEW  A^OllK. 


()31 

In  Xew  York,  as  elsewhere,  the  first  imjwessions  were  in  favor 
of  the  Constitution.  In  the  city,  and  in  the  southern  counties 
generally,  it  was  from  the  first  highly  ])opular.  But  it  was  soon 
apparent  that  the  whole  official  influence  of  the  executive  govern- 
ment of  the  state  would  be  thrown  against  it.  There  had  been  a 
strong  party  in  the  state,  ever  since  its  refusal  to  bestow  on  the 
Congress  the  powers  asked  for  in  the  revenue  system  of  1783,  who 
had  regarded  the  Union  with  jealousy,  and  steadily  opposed  the 
surrender  to  it  of  any  further  powers.  Of  this  party  the  gov- 
ernor, George  Clinton,  was  now  the  head;  and  the  government 
of  the  state,  which  embraced  a considerable  amount  of  what  is 
termed  patronage,”  was  in  their  hands.  Two  of  the  delegates 
of  the  state  to  the  national  Convention,  Yates  and  Lansing,  had 
retired  from  that  body  before  the  Constitution  was  completed, 
and  had  announced  their  opposition  to  it  in  a letter  to  the  gov- 
ernor, which,  from  its  tone  and  the  character  of  its  objections,  was 
likely  to  produce  a strong  impression  on  the  public  mind.  It  be- 
came evident  that  the  Constitution  could  be  carried  in  the  state  of 
I7ew  York  in  no  other  way  than  by  a thorough  discussion  of  its 
merits — such  a discussion  as  would  cause  it  to  be  understood  by 
the  people,  and  would  convince  them  that  its  adoption  was  de- 
manded by  their  interests.  For  this  purpose  Hamilton,  Madison, 
and  Jay,  under  the  common  signature  of  Publius,  commenced 
the  publication  of  the  series  of  essays  which  became  known  as 
The  Federalist.  The  first  number  was  issued  in  the  latter  part 
of  October. 

In  January  the  governor  presented  the  official  communication 
of  the  instrument  from  the  Congress  to  the  legislature,  with  the 
cold  remark  that,  from  the  nature  of  his  official  position,  it  would 
be  improper  for  him  to  have  au3^  other  agency  in  the  business  than 
that  of  laying  the  papers  before  them  for  their  information. 
Heither  he  nor  his  party,  however,  contented  themselves  Avith  this 
abstinence.  After  a severe  struggle,  resolutions  ordering  a state 
convention  to  be  elected  Avere  passed  by  the  bare  majorities  of 
three  in  the  Senate  and  two  in  the  House,  on  the  first  day  of  Feb- 
ruary, 1788.  The  elections  Avere  held  in  April ; and  Avhen  the  re- 
sult became  knoAvn,  in  the  latter  part  of  May,  it  appeared  that  the 
Anti-Federalists  had  elected  tAA^o  thirds  of  the  members  of  the 
Convention,  and  that  probably  four  sevenths  of  the  people  of  the 


632 


CONSTITUTIONAL  HISTORY. 


state  were  unfriendly  to  the  Constitution.  Backed  by  this  large 
majority,  the  leaders  of  the  Anti-Federal  party  intended  to  meet 
in  convention  at  the  appointed  time,  in  June,  and  then  to  adjourn 
until  the  spring  or  summer  of  1789.  Their  argument  for  this 
course  was  that  if  the  Constitution  had  been  adopted  in  the 
course  of  a twelvemonth  by  nine  other  states,  New  York  would 
have  an  opportunity  to  witness  its  operation  and  to  act  according 
to  circumstances.  They  would  thus  avoid  an  immediate  rejection 
— a step  which  might  lead  the  Federalists  to  seek  a separation  of 
the  southern  from  the  northern  part  of  the  state,  for  the  purpose 
of  forming  a new  state.  On  the  other  hand,  the  Federalists  rest- 
ed their  hopes  upon  what  they  could  do  to  enlighten  the  public 
at  large,  and  upon  the  effect  on  their  opponents  of  the  action  of 
other  states,  especially  of  Virginia,  whose  convention  was  to  meet 
at  nearly  the  same  time.  The  Convention  of  New  Y"ork  assembled 
at  Poughkeepsie,'  on  the  17th  of  June,  1788. 

However  strong  the  opposition  in  other  states,  it  was  to  be  in 
Virginia  far  more  formidable,  from  the  abilities  and  influence  of 
its  leaders,  from  the  nature  of  their  objections,  and  from  the  pe- 
culiar character  of  the  state.  Possessed  of  a large  number  of  men 
justly  entitled  to  be  regarded  then  and  always  as  statesmen, 
although  many  of  them  were  prone  to  great  refinements  in  mat- 
ters of  government ; filled  with  the  spirit  of  republican  freedom, 
although  its  polity  and  manners  were  marked  by  several  aristo- 
cratic features ; having,  on  the  one  hand,  but  few  among  its  citi- 
zens interested  in  commerce,  and  still  fewer,  on  the  other  hand, 
of  those  levelling  and  licentious  classes  which  elsewhere  sought  to 
overturn  or  control  the  interests  of  property ; ever  ready  to  lead 
in  what  it  regarded  as  patriotic  and  demanded  by  the  interests  of 
the  Union,  but  jealous  of  its  own  dignity  and  of  the  rights  of  its 
sovereignty — the  state  of  Virginia  would  certainly  subject  the 
Constitution  to  as  severe  an  ordeal  as  it  could  undergo  anywhere, 
and  would  elicit  in  the  discussion  all  the  good  or  the  evil  that 
could  be  discovered  in  the  examination  of  a system  before  it  had 
been  practically  tried.  The  state  was  to  feel,  it  is  true,  the  al- 
most overshadowing  influence  of  Washington,  in  favor  of  the  new 


A town  on  the  Hudson  River,  seventy-five  miles  north  of  the  city  of  New 
York. 


PROBABILITIES  IN  VIRGINIA. 


633 


system,  exerted,  not  by  personal  participation  in  its  proceedings, 
but  in  a manner  which  could  leave  no  doubt  respecting  liis  opinion. 
Jlut  it  was  also  to  feel  the  strenuous  opposition  of  Patrick  Henry, 
that  great  natural  orator  of  the  Revolution,  whose  influence  over 
popular  assemblies  was  enormous,  and  who  added  acuteness,  sub- 
tilty,  and  logic  to  the  fierce  sincerity  of  his  unstudied  harangues, 
and  the  not  less  strenuous  or  effective  opposition  of  George  Ma- 
son, who  had  little  of  the  eloquence  and  passion  of  his  renowned 
compatriot,  but  who  was  one  of  the  most  profound  and  able  of 
all  the  American  statesmen  opposed  to  the  Constitution,  while 
he  was  inferior  in  general  powers  and  resources  to  not  more  than 
two  or  three  of  those  who  framed  or  advocated  it.  Richard 
Henry  Lee,  William  Grayson,  Benjamin  Harrison,  John  Tyler,  and 
others  of  less  note,  were  united  with  Henry  and  Ma^on  in  oppos- 
ing the  Constitution.  Its  leading  advocates  were  to  be  Madison, 
Marshall,  the  future  chief  - justice  of  the  United  States,  George 
^^icholas,  and  the  chancellor,  Pendleton.  The  governor,  Edmund 
Randolph,  occupied  for  a time  a middle  position  between  its 
friends  and  its  opponents,  but  finally  gave  to  it  his  support,  from 
motives  which  I have  elsewhere  described  as  eminently  honorable 
and  patriotic. 

One  of  the  most  distinguished  of  the  public  men  of  Virginia 
had  been  absent  in  the  diplomatic  service  of  the  country  for  three 
years.  His  eminent  abilities  and  public  services,  his  national  rep- 
utation, and  the  influence  of  his  name,  naturally  made  both  parties 
anxious  to  claim  the  authority  of  Jefferson,  and  he  was  at  once 
furnished  with  a copy  of  the  Constitution  as  soon  as  it  appeared. 
In  the  heats  of  subsequent  political  conflicts  he  has  been  often 
charged  by  his  opponents  with  a general  hostility  to  the  Constitu- 
tion. The  truth  is,  that  Mr.  Jefferson’s  opinions  on  the  subject  of 
government,  and  of  what  was  desirable  and  expedient  to  be  done 
in  this  country,  united  with  the  effect  of  his  long  absence  from 
home,'  did  lead  him,  at  first,  to  think  and  to  say  that  the  Consti- 
tution had  defects  which,  if  not  corrected,  would  destroy  the  lib- 
erties of  America.  He  was  by  far  the  most  democratic,  in  the 
tendency  of  his  opinions,  of  all  the  principal  American  statesmen 


He  went  abroad  in  the  summer  of  1784. 


(53^  CONSTITUTIONAL  HISTORY, 

of  that  age.  Ho  was,  according  to  his  own  avowal,  no  friend  to 
an  energetic  government  anywhere.  He  carried  abroad  the  opin- 
ion tliat  the  Confederation  could  be  adapted,  with  a few  changes, 
to  ail  the  wants  of  the  Union;  and  tliis  opinion  lie  continued  to 
retain,  because  the  events  which  had  taken  place  here  during  his 
absence  did  not  produce  upon  his  mind  the  effect  which  they  pro- 
duced upon  the  great  majority  of  public  men  who  remained  in  the 
midst  of  them.  He  freely  declared  to  more  than  one  of  his  cor- 
respondents in  Virginia,  at  this  time,  that  such  disorders  as  had 
been  witnessed  in  Massachusetts  were  necessary  to  public  liberty, 
and  that  the  national  Convention  had  been  too  much  influenced 
by  them  in  preparing  the  Constitution.  He  held  that  the  natural 
progress  of  things  is  for  liberty  to  lose  and  for  government  to  gain 
ground ; and  that  no  government  should  be  organized  without 
those  express  and  positive  restraints  which  will  jealously  guard 
the  liberties  of  the  people,  even  if  those  liberties  should  periodi- 
cally break  into  licentiousness.  One  of  his  favorite  maxims  of 
government  was  “rotation  in  office;”  and  he  thought  the  govern- 
ment of  the  Union  should  have  cognizance  only  of  matters  involved 
in  the  relations  of  the  people  of  each  state  to  foreign  countries,  or 
to  the  people  of  the  other  states,  and  that  each  state  should  retain 
the  exclusive  control  of  all  its  internal  and  domestic  concerns,  and 
especially  the  power  of  direct  taxation. 

Hence  it  is  not  surprising  that,  when  Mr.  Jefferson  received  at 
Paris,  early  in  November,  a copy  of  the  Constitution,  and  when 
he  found  in  it  no  express  declarations  insuring  the  freedom  of  le- 
ligion,  freedom  of  the  press,  and  freedom  of  the  person  under  the 
uninterrupted  protection  of  the  habeas  corpus,  and  no  trial  by  jury 
in  civil  cases,  and  found  also  that  the  president  would  be  re-eligible, 
and  that  the  government  would  have  the  power  of  direct  taxation, 
his  anxiety  should  have  been  excited.  It  is  a mistake,  however, 
to  suppose  that  he  counselled  a direct  rejection  of  the  instrument 
by  the  people  of  Virginia.  His  first  suggestion  was  that  the  nine 
states  which  should  first  act  upon  it  should  adopt  it  uncondition- 
ally, and  that  the  four  remaining  states  should  accept  it  only  on 
the  previous  condition  that  certain  amendments  should  be  made. 
This  plan  of  his  became  known  in  Virginia  in  the  course  of  the 
winter  of  1787-88,  and  it  gave  the  Anti-Federalists  what  they  con- 
sidered a warrant  for  using  his  authority  on  their  side.  But  before 


THE  CONSTITUTION  IN  VIIIGINIA. 


G35 


the  following  spring,  when  he  had  had  an  opportunity  to  see  the 
course  pursued  by  Massachusetts,  he  changed  his  opinion,  and  au- 
thorized his  friends  to  say  that  he  regarded  an  unconditional  ac- 
ceptance by  each  state,  and  subsequent  amendments,  in  the  mode 
provided  by  the  Constitution,  as  the  only  rational  plan.'  He  also 
abandoned  the  opinion  that  the  general  government  ought  not  to 
have  the  power  of  direct  taxation  ; but  he  never  receded  from  his 
objections  founded  on  the  want  of  a bill  of  rights,  and  of  trial  by 
jury,  and  on  the  re-eligibility  of  the  president. 

Immediately  after  his  return  to  Mount  Yernon  from  the  na- 
tional Convention,  AVashington  sent  copies  of  the  Constitution  to 
Patrick  Henry,  Mason,  Harrison,  and  other  leading  persons  whose 
opposition  he  anticipated,  with  a temperate  but  firm  expression  of 
his  own  opinion.  The  replies  of  these  gentlemen  furnished  him 
with  the  grounds  of  their  objections,  and  at  the  same  time  re- 
lieved him,  as  to  all  of  them  but  Henry,  from  the  apprehension 
that  they  might  resist  the  calling  of  a state  convention.  Mason 
and  Henry  were  both  members  of  the  legislature.  The  former 
was  expressly  instructed  by  his  constituents  of  Alexandria  county" 
to  vote  for  a submission  of  the  Constitution  to  the  people  of  the 
state  in  convention  — a vote  which  he  would  probably  have 
given  without  instruction,  as  he  declared  to  AYashington  that 
he  should  use  all  his  influence  for  this  purpose.  Air.  Henry  was 
not  instructed,  and  the  friends  of  the  Constitution  expected  his 
resistance.  The  legislature  assembled  in  October,  and  on  the  first 
day  of  the  session,  in  a very  full  House,  Henry  declared,  to  the 
surprise  of  everybodjq  that  the  proposed  Constitution  must  go  to 

^ Compare  Mr.  Jefterson’s  autobiography,  and  his  correspondence,  in  tlie 
first,  second,  and  third  volumes  of  his  collected  works  (edition  of  1853),  and 
the  letters  of  Mr.  ]\Iadison. 

" In  the  newspapers  of  the  time  there  is  to  be  found  a story  that  Mr.  Mason 
was  very  roughly  received  on  his  arrival  at  the  city  of  Alexandria,  after  the  ad- 
journment of  the  national  Convention,  on  account  of  his  refusal  to  sign  the  Con- 
stitution. The  occurrence  is  not  alluded  to  in  Washington’s  correspondence, 
although  he  closely  observed  Mr.  Mason’s  movements,  and  regarded  them  with 
evident  anxiety.  The  story  is  told  in  the  Pennsylvania  Journal  of  October  17th, 
1787 — a strong  Federal  paper.  I know  of  no  other  confirmation  of  it  than  the 
fact  that  the  people  of  Alexandria  embraced  the  Constitution  from  the  first  with 
“enthusiastic  warmth,”  according  to  the  account  given  by  Washington  to  one 
of  his  cori-espondents.  Works,  IX.  272. 


CONSTITUTIONAL  HISTORY. 


cr,G 

a popular  conveution.  The  elections  for  such  a body  were  ordered 
to  be  held  in  March  and  April  of  the  following  spring.  When 
they  came  on,  the  news  that  the  convention  of  A^ew  Hampshire 
had  postponed  their  action  was  employed  by  the  Anti-Federalists, 
who  insisted  that  this  step  had  been  taken  in  deference  to  Virginia ; 
although  it  was  in  fact  taken  merely  in  order  that  the  delegates  of 
New  Hampshire  might  get  their  previous  instructions  against  the 
Constitution  removed  by  their  constituents.  The  pride  of  Virginia 
was  touched  by  this  electioneering  expedient,  and  the  result  was 
that  the  parties  in  the  state  convention  were  nearly  balanced,  the 
Federalists,  however,  having,  as  they  supposed,  a majority.'  The 
convention  was  to  assemble  on  the  2d  of  June,  1788. 

In  the  leo-islature  of  South  Carolina  the  Constitution  was  de- 
bated,  with  great  earnestness,  for  three  days,  before  it  was  decided 
to  send  it  to  a popular  convention.  This  was  owing  to  the  great 
persistency  of  Hawlins  Lowndes,  who  carried  on  the  discussion  in 
opposition  to  the  Constitution  almost  single-handed  and  with  great 
ability,  against  the  two  Pinckneys,  Pierce  Butler,  John  and  Edward 
Kutledge,  John  Julius  Pringle,  Kobert  Barnwell,  Hr.  David  Barn- 
say,  and  many  other  gentlemen.  At  length,  on  the  19th  of  Jan- 
uary, a resolution  was  passed,  directing  a convention  of  the  people 
to  assemble  on  the  12th  of  May.  The  debate  in  the  legislature 
had  tended  to  diffuse  information  respecting  the  system,  but  it 
had  also  produced  a formidable  minority  throughout  the  state. 
Mr.  Lowndes  had  employed,  with  a good  deal  of  skill,  the  local 
arguments  which  would  be  most  likely  to  form  the  objections  of  a 
citizen  of  South  Carolina.  He  inveighed  against  the  regulation  of 
commerce,  the  power  over  the  slave-trade  that  was  to  belong  to 
Congress  at  the  end  of  twenty  years,  and  the  preponderance  which 
he  contended  would  be  giv^en  to  the  Eastern  States  by  the  system 
of  representation  in  Congress ; and  although  he  was  ably  answered 
on  all  points,  the  effect  of  the  discussion  was  such  that  a large 
minority  was  returned  to  the  Convention  having  a strong  hostility 
to  the  proposed  system." 

’ Washington’s  Works,  IX.  206,  267,  273,  340-342,  345,  346. 

2 This  debate  of  three  days  in  the  South  Carolina  legislature  was  one  of  the 
most  able  of  all  the  discussions  attending  the  ratification  of  tlie  Constitution. 
Mr.  Lowndes  was  overmatched  by  his  antagonists,  but  he  resisted  with  great 
spirit,  and  finally  closed  with  the  declaration  that  he  saw  dangers  in  the  pro- 


THE  CONSTITUTION  IN  SOUTH  CAROLINA.  f]37 

The  legislature  of  Maryland  assembled  in  December,  and  di- 
rected the  delegates  who  had  represented  the  state  in  the  national 
Convention  to  attend  and  give  an  account  of  the  proceedings  of 
that  assembly.  It  was  in  compliance  with  this  direction  that 
Luther  Martin  laid  before  the  legislature  that  celebrated  communi- 
cation which  embodied  not  only  a very  clear  statement  of  the 
mode  in  which  the  principal  compromises  of  the  Constitution  were 
framed,  as  seen  from  the  point  of  view  occupied  by  one  who  re- 
sisted them  at  every  step,  but  also  an  exceedingly  able  argument 
against  the  fundamental  principle  of  the  proposed  government. 
It  was  a paper,  too,  marked  throughout  with  an  earnestness  almost 
amounting  to  fanaticism.  Kepelling,  with  natural  indignation  and 
dignity,  the  imputation  that  he  was  influenced  by  a state  office 
which  he  then  held,  he  referred  to  the  numerous  honors  and 
emoluments  which  the  Constitution  of  the  United  States  would 
create,  and  suggested— what  his  abilities  and  reputation  well  justi- 
that  his  chance  of  obtaining  a share  of  them  was  as  good  as 
most  men’s.  ‘‘  But  this,”  was  his  solemn  conclusion,  “ I can  say 
with  truth,  that  so  far  was  I from  being  influenced  in  my  conduct 
by  interest,  or  the  consideration  of  office,  that  I would  cheerfully 
resign  the  appointment  I now  hold ; I would  bind  myself  never  to 
accept  another,  either  under  the  general  government  or  that  of  mv 
own  state ; I would  do  more,  sir — so  destructive  do  I consider  the 
present  system  to  the  happiness  of  my  country— I would  cheerfully 
sacrifice  that  share  of  property  with  which  Heaven  has  blessed  a 
life  of  industry  ; I would  reduce  myself  to  indigence  and  poverty ; 
and  those  who  are  dearer  to  me  than  my  own  existence  I would 
intrust  to  the  care  and  protection  of  that  Providence  who  hath  so 
kindly  protected  myself,  if  on  those  terms  only  I could  procure  my 
country  to  reject  those  chains  which  are  forged  for  it.” 

Such  a strength  of  conviction  as  this,  on  the  part  of  a man  of 
high  talent,  was  well  calculated  to  produce  an  effect.  Ho  docu- 
ment that  appeared  anywhere,  against  the  Constitution,  was  better 

posed  government  so  great  that  he  could  wish,  when  dead,  for  no  other  epitaph 
than  this:  “Here  lies  the  man  that  opposed  the  Constitution,  because  it  was 
luinous  to  the  liberty  of  America.”  He  lived  to  find  his  desired  epitaph  a false 
piophecy.  He  was  the  father  of  the  late  William  Lowndes,  who  represented  the 
htate  of  bouth  Carolina  in  Congress,  with  so  much  honor  and  distinction,  during 
the’ administration  of  Mr.  Madison. 


038  CONSTITUTIONAL  HISTORY. 

adapted  to  rouse  the  jealousy,  to  confirm  the  doubts,  or  to  decide 
tlie  opinions  of  a certain  class  of  minds.  But  it  was  an  argu- 
ment which  reduced  tlie  whole  question  substantially  to  the  issue 
Avhether  the  principle  of  the  Union  could  safely  he  changed  from 
that  of  a federal  league,  with  an  equality  of  representation  and 
power  as  between  the  states,  to  a system  of  national  representa- 
tion in  a legislative  body  having  cognizance  of  certain  national  in- 
terests, in  one  branch  of  which  the  people  inhabiting  the  respective 
states  should  have  power  in  proportion  to  their  numbers.  This 
was  a question  on  which  men  would  naturally  and  honestly  differ  5 
but  it  was  a question  which  a majority  of  reflecting  men,  in  almost 
everv  state,  were  likely,  after  due  inquiry,  to  decide  against  the 
views  of  Mr.  Martin,  because  it  was  clear  that  the  Confederation 
had  failed,  and  had  failed  chiefly  by  reason  of  the  peculiar  and 
characteristic  nature  of  its  representative  system,  and  because  the 
representative  system  proposed  in  the  Constitution  was  the  only 
one  that  could  be  agreed  upon  as  the  alternative.  Mr.  Martin’s 
objections,  however^  like  those  of  other  distinguished  men  who 
took  the  same  side  in  other  states,  were  of  a nature  to  foirn  the 
creed  of  an  earnest,  conscientious,  and  active  minority.  They  had 
this  effect  in  the  state  of  Maryland.  The  legislature  ordered 
a state  convention  to  consider  the  proposed  Constitution,  and 
directed  it  to  meet  on  the  21st  of  April,  1<88. 

The  convention  of  New  Hampshire  was  to  assemble  in  Febru- 
ary. A large  portion  of  the  state  lay  remote  from  the  channels  of 
intelligence,  and  a considerable  part  of  the  people  in  the  interior 
had  not  seen  the  Constitution,  when  they  were  called  upon  to  elect 
their  delegates.  The  population,  outside  of  two  or  three  principal 
places,  was  a rural  one,  thinly  scattered  over  townships  of  large 
territorial  extent,  lying  among  the  hills  of  a broken  and  rugged 
country,  extending  northerly  from  the  narrow  strip  of  sea-coast 
towards  the  frontier  of  Canada.  It  was  easy  for  the  opposition  to 
persuade  such  a people  that  a scheme  of  government  had  been  pre- 
pared which  they  ought  to  reject ; and  the  consequence  of  their 
efforts  was  that  the  state  convention  assembled,  probably  with  a 


1 Mr.  Martin’s  objections  extended  to  many  of  tlie  details  of  the  Constitution, 
but  his  great  argument  was  that  directed  against  its  system  of  representation, 
which  he  predicted  would  destroy  the  state  governments. 


GROUNDS  OF  OBJECTION. 


C39 


majority,  certainly  with  a strong  minority,  of  its  members  bound 
by  positive  instructions  to  vote  against  the  Constitution  which 
they  were  to  consider. 

I have  thus,  in  anticipation  of  the  strict  order  of  events,  given 
a general  account  of  the  position  of  this  great  question  in  six  of 
the  states,  down  to  the  time  of  the  meeting  of  their  respective  con- 
ventions, because  when  the  session  of  the  convention  of  Massachu- 
setts commenced,  in  January,  1788,  the  people  of  the  five  states  of 
Delaware,  Pennsylvania,  New  Jersey,  Georgia,  and  Connecticut 
had  successively  ratified  the  Constitution  without  proposing  any 
amendments,  and  because  the  action  of  the  others,  extending 
through  the  six  following  months,  embraced  the  real  crisis  to 
which  the  Constitution  was  subjected,  and  developed  Avhat  were 
thereafter  to  be  considered  as  its  important  defects,  according  to 
the  view  of  a majority  of  the  states,  and  probably  also  of  a major- 
ity of  the  people  of  all  the  states.  For  although  the  people  of 
Delaware,  Pennsylvania,  New  Jersey,  Georgia,  and  Connecticut 
ratified  the  Constitution  without  insisting  on  previous  or  subse- 
quent amendments,  it  is  certain  tliat  some  of  the  same  topics  were 
the  causes  of  anxiety  and  objection  in  those  states,  which  occa- 
sioned so  much  difficulty,  and  became  the  grounds  of  special 
action,  in  the  remaining  states. 

In  coming,  however,  to  the  more  particular  description  of  the 
resistance  which  the  Constitution  encountered,  it  will  be  necessary 
to  discriminate  between  the  opposition  that  was  made  to  the  gen- 
eral plan  of  the  government,  or  to  the  particular  features  of  it 
Avhich  it  was  proposed  to  create,  and  that  which  was  founded  on 
its  omission  to  provide  for  certain  things  that  were  deemed  essen- 
tial. Of  what  may  be  called  the  positive  objections  to  the  Con- 
stitution, it  may  be  said,  in  general,  that,  however  fruitful  of  de- 
bate or  declamation,  or  serious  and  important  doubt,  might  be  the 
question  whether  such  a government  as  had  been  framed  by  the 
national  Convention  should  be  substituted  for  the  Confederation, 
the  opposition  were  not  confined  to  this  question,  as  the  means  of 
persuading  the  people  that  the  proposed  system  ought  to  be  re- 
jected. One  of  the  most  deeply  interested  of  the  men  who  were 
watching  the  currents  of  public  opinion  with  extreme  solicitude 
observed  a strong  belief  in  the  people  at  large  of  the  insufficiency 
of  the  Confederation  to  preserve  the  existence  of  the  Union,  and 


(540  CONSTITUTIONAL  HISTORY. 

of  the  necessity  of  the  Union  to  their  safety  and  prosperity ; of 
course,  a strong  desire  of  a change,  and  a predisposition  to  receive 
Avell  the  propositions  of  the  Convention.”  ‘ But  while  the  Consti- 
tution came  before  the  people  with  this  conviction  and  this  pre- 
disposition in  its  favor,  yet  when  its  opponents,  in  addition  to  their 
positive  objections  to  what  it  did  contain,  could  point  to  what  it 
did  not  embrace,  and  could  say  that  it  proposed  to  establish  a gov- 
ernment of  great  power,  without  providing  for  rights  of  primary 
importance,  and  without  any  declaration  of  the  cardinal  maxims 
of  liberty  which  the  people  had  from  the  first  been  accustomed  to 
incorporate  with  their  state  constitutions ; and  while  the  local  in- 
terests, the  sectional  feelings,  and  the  separate  policy,  real  or  sup- 
posed, of  different  states  furnished  such  a variety  of  means  for  de- 
feating its  adoption  by  the  necessary  number  of  nine  states,  we 
may  not  wonder  that  its  friends  should  have  been  doubtful  of  the 
issue.  “ It  IS  almost  arrogance,”  said  the  same  anxious  observer, 
“in  so  complicated  a subject,  depending  so  entirely  upon  the  in- 
calculable fluctuations  of  the  human  passions,  to  attempt  even  a 
conjecture  about  the  result.” " 


Hamilton,  Works,  II.  419,  420. 


2 Ibid.,  421. 


CIIAPTEE  XXXIY. 


Ratifications  of  Delaware,  Pennsylvania,  Xew  Jersey,  Geor- 
gia, AND  Connecticut,  without  Objection. — Close  of  the  Year 
1787.— Beginning  of  the  Year  1788. — Ratification  of  Massa- 
chusetts, THE  Sixth  State,  with  Propositions  of  Amendment. 
— Ratification  of  Maryland,  without  Objection. — South  Car- 
olina, THE  Eighth  State,  Adopts,  and  Proposes  Amendments. 

The  first  state  that  ratified  the  Constitution,  although  its  con- 
vention was  not  the  first  to  assemble,  was  Delaware.  It  was  a 
small,  compact  community,  with  the  northerly  portion  of  its  terri- 
tory lying  near  the  city  of  Philadelphia,  with  which  its  people  had 
constant  and  extensive  intercourse.  Its  public  men  were  intelli- 
gent and  patriotic.  In  the  national  Convention  it  had  contended 
witli  great  spirit  for  the  interests  of  the  smaller  states,  and  its 
people  now  had  the  sagacity  and  good  sense  to  perceive  that  they 
had  gained  every  reasonable  security  for  their  peculiar  rights. 
The  public  press  of  Philadelphia  friendly  to  the  Constitution  fur- 
nished the  means  of  understanding  its  merits,  and  the  discussions 
in  the  convention  of  Pennsylvania,  which  assembled  before  that 
of  Delaware,  threw  a flood  of  light  over  the  whole  subject,  which 
the  people  of  Delaware  did  not  fail  to  regard.  Their  delegates 
unanimously  ratified  and  adopted  the  Constitution  on  the  7th  of 
December. 

The  convention  of  Pennsylvania  met,  before  that  of  any  of  the 
other  states,  at  Philadelphia,  on  the  20th  of  Xovember.  It  was 
the  second  state  in  the  Union  in  population.  Its  chief  city  was 
perhaps  the  first  in  the  Union  in  refinement  and  wealth,  and  had 
often  been  the  scene  of  great  political  events  of  the  utmost  inter- 
est and  importance  to  the  whole  country.  There  had  sat,  eleven 
years  before,  that  illustrious  Congress  of  deputies  from  the  thir- 
teen colonies,  who  had  declared  the  independence  of  America, 
had  made  Washington  commander-in-chief  of  her  armies,  and  had 
I.— 41 


C42 


CONSTITUTIONAL  HISTORY. 


given  her  struggle  for  freedom  a name  throughout  the  world. 
There  the  Eevolutionary  Congress  had  continujbd,  with  a short 
interruption,  to  direct  the  operations  of  the  war."^  There  the  alli- 
ance with  France  was  ratified,  in  1778.  There  the  Articles  of 
Confederation  were  finally  carried  into  full  effect,  in  1781.  There, 
within  six  months  afterwards,  the  Congress  received  intelligence 
of  the  surrender  of  Cornwallis,  and  walked  in  procession  to  one 
of  the  churches  of  the  city,  to  return  thanks  to  God  for  a victory 
which  in  effect  terminated  the  war.  There  the  instructions  for 
the  treaty  of  peace  were  given,  in  1782,  and  there  the  Constitution 
of  the  United  States  had  been  recently  framed.  For  more  than 
thirteen  years,  since  the  commencement  of  the  Kevolution,  and 
with  only  occasional  intervals,  the  people  of  Philadelphia  had 
been  accustomed  to  the  presence  of  the  most  eminent  statesmen 
of  the  country,  and  had  learned,  through  the  influences  which  had 
gone  forth  from  their  city,  to  embrace  in  their  contemplation  the 
interests  of  the  Union. 

They  placed  in  the  state  convention,  that  was  to  consider  the 
proposed  Constitution  of  the  United  States,  one  of  the  wisest  and 
ablest  of  its  framers— James  Wilson.  The  modesty  of  his  subse- 
quent career,  and  the  comparatively  little,  attention  that  has  been 
bestowed  by  succeeding  generations  upon  the  personal  exertions 
that  were  made  in  framing  and  establishing  the  Constitution,  must 
be  regarded  as  the  causes  that  have  made  his  reputation,  at  this 
day,  less  extensive  and  general  than  his  abilities  and  usefulness 
might  have  led  his  contemporaries  to  expect  that  it  would  be.  Yet 
the  services  which  he  rendered  to  the  country,  first  in  assisting  in 
the  preparation  of  the  Constitution,  and  afterwards  in  securing  its 
adoption  by  the  state  of  Pennsylvania,  should  place  his  name  high 
upon  the  list  of  its  benefactors.  He  had  not  the  political  genius 
which  gave  Hamilton  such  a complete  mastery  over  the  most  com- 
plex subjects  of  government,  and  which  enabled  him,  when  the 
Constitution  had  been  adopted,  to  give  it  a development  in  prac- 
tice that  made  it  even  more  successful  than  its  theory  alone  could 
have  allowed  any  one  to  regard  as  probable ; nor  had  he  the  talent 
of  Madison  for  debate  and  for  constitutional  analysis ; but  in  the 
comprehensiveness  of  his  views,  and  in  his  perception  of  the  neces- 
sities of  the  country,  he  was  not  their  inferior,  and  he  was  through- 
out one  of  their  most  efficient  and  best-informed  coadjutors. 


THE  CONSTITUTION  IN  PENNSYLVANIA.  643 

lie  had  to  encounter,  in  the  convention  of  the  state,  a body  of 
men  a majority  of  whom  were  not  unfriendly  to  the  Constitution, 
but  among  whom  there  was  a minority  very  hard  to  be  conciliated. 
In  the  counties  which  lay  west  of  the  Susquehanna— the  same 
region  which  afterwards,  in  Washington’s  administration,  became 
the  scene  of  an  insurrection  against  the  authority  of  the  general 
government— there  was  a rancorous,  active,  and  determined  oppo- 
sition. Mr.  Wilson,  being  the  only  member  of  the  state  conven- 
tion who  had  taken  part  in  the  framing  of  the  Constitution,  was 
obliged  to  take  the  lead  in  explaining  and  defending  it.  His  qual- 
ifications for  this  task  were  ample.  He  had  been  a very  important 
and  useful  member  of  the  national  Convention  j he  had  read  every 
publication  of  importance,  on  both  sides  of  the  question,  that  had 
appeared  since  the  Constitution  was  published,  and  his  legal  and 
historical  knowledge  was  extensive  and  accurate.  Ho  man  suc- 
ceeded better  than  he  did,  in  his  arguments  on  that  occasion,  in 
combating  the  theory  that  a state  government  possessed  the  whole 
political  sovereignty  of  the  people  of  the  state.  However  true  it 
might  be,  he  said,  in  England,  that  the  Parliament  possesses  su- 
preme and  absolute  power,  and  can  make  the  constitution  wllat  it 
pleases,  in  America  it  has  been  incontrovertible  since  the  Eevolu- 
tion  that  the  supreme,  absolute,  and  uncontrollable  power  is  in 
the  people  before  they  make  a constitution,  and  remains  in  them 
after  it  is  made.  To  control  the  power  and  conduct  of  the  legis- 
lature by  an  overruling  constitution  was  an  improvement  in  the 
science  and  practice  of  government  reserved  to  the  American 
states;  and  at  the  foundation  of  this  practice  lies  the  right  to 
change  the  constitution  at  pleasure  — a right  which  no  positive 
institution  can  ever  take  from  the  people.  When  they  have  made 
a state  constitution  they  have  bestowed  on  the  government  cre- 
ated by  it  a certain  portion  of  their  power ; but  the  fee  simple  of 
their  power  remains  in  themselves. 

Mr.  Wilson  was  equally  clear  in  accounting  for  the  omission 
to  insert  a bill  of  rights  in  the  Constitution  of  the  United  States. 
In  a government,  he  observed,  consisting  of  enumerated  powers, 
such  as  was  then  proposed  for  the  United  States,  a bill  of  rights' 
which  is  an  enumeration  of  the  powers  reserved  by  the  people, 
must  either  be  a perfect  or  an  imperfect  statement  of  the  powers 
and  privileges  reserved.  To  undertake  a perfect  enumeration  of 


CONSTITUTIONAL  HISTORY. 


644 

the  civil  rights  of  mankind  is  to  undertake  a very  diiRcult  and 
htizardous,  and  perhaps  an  impossible  task ; yet  if  the  enumeration 
is  imperfect,  all  implied  power  seems  to  be  thrown  into  the  hands 
of  the  government,  on  subjects  in  reference  to  which  the  authority 
of  government  is  not  expressly  restrained,  and  the  rights  of  the 
people  are  rendered  less  secure  than  they  are  under  the  silent 
operation  of  the  maxim  that  every  power  not  expressly  granted 
remains  in  the  people.  This,  he  stated,  was  the  view  taken  by  a 
large  majority  of  the  national  Convention,  in  which  no  direct 
proposition  was  ever  made,  according  to  his  recollection,  for  the 
insertion  of  a bill  of  rights.'  There  is,  undoubtedly,  a general 
truth  in  this  argument,  but,  like  many  general  truths  in  the  con- 
struction of  governments,  it  may  be  open  to  exceptions  when 
applied  to  particular  subjects  or  interests.  It  appears  to  have 
been,  for  the  time,  successful ; probably  because  the  opponents  of 
the  Constitution,  with  whom  Mr.  Wilson  was  contending,  did  not 
bring  forward  specific  propositions  for  the  declaration  of  those 
particular  rights  which  were  made  the  subjects  of  special  action 
in  other  state  conventions. 

Besides  a very  thorough  discussion  of  these  great  subjects, 
Mr.  Wilson  entered  into  an  elaborate  examination  and  defence  of 
the  whole  system  proposed  in  the  Constitution.  He  was  most 
ably  seconded  in  his  efforts  by  Thomas  -McKean,  then  chief-jus- 
tice ' of  Pennsylvania  and  afterwards  its  governor,  the  greater 
part  of  whose  public-  life  had  been  passed  in  the  service  of  Dela- 
ware, his  native  state,  and  who  had  always  been  a strenuous  advo- 
cate of  the  interests  of  the  smaller  states,  but  who  found  himself 
satisfied  with  the  provision  for  them  made  by  the  Constitution 
for  the  construction  of  the  Senate  of  the  United  States.  .‘*1 
have  gone,”  said  he,  “ through  the  circle  of  office  in  the  legisla- 
tive, executive,  and  judicial  departments  of  government ; and 
from  all  my  study,  observation,  and  experience,  I must  declare 

J This  was  a mistake.  On  the  12th  of  September,  Messrs.  Gerry  ami  Mason 
moved  for  a committee  to  prepare  a bill  of  rights,  but  the  motion  was  lost  by  an 
equal  division  of  the  states.  Elliot,  V.  538. 

Mr.  McKean,  although  his  residence  was  at  Philadelphia,  represented  the 
lower  counties  of  Delaware  in  Congress  from  1774  to  1783.  In  1777  he  was 
made  chief-justice  of  Pennsylvania,  being  at  the  same  time  a member  of  Con- 
gress and  president  of  the  state  of  Delaware. 


THE  CONSTITUTION  IN  NEW  JERSEY. 


645 


that,  from  a full  examination  and  due  consideration  of  this  sys- 
tem, it  appears  to  me  the  best  the  world  lias  yet  seen.  I con- 
gratulate you  on  the  fair  prospect  of  its  being  adopted,  and  am 
happy  in  the  expectation  of  seeing  accomplished  what  has  long 
been  my  ardent  wish,  that  you  will  hereafter  have  a salutary  per- 
manency in  magistracy  and  stability  in  the  laws.” 

The  result  of  the  discussion  in  the  convention  of  Pennsylvania 
was  the  ratification  of  the  Constitution.  The  official  ratification 
sent  to  Congress  was  signed  by  a very  large  majority  of  the  dele- 
gates, and  contains  no  notice  of  any  dissent.*  But  the  representa- 
tives of  that  portion  of  the  state  which  lay  west  of  the  Susquehanna] 
generally  refused  their  assent,  and  their  district  afterwards  became 
the  place  in  which  the  proposition  was  considered  whether  the 
government  should  be  allowed  to  be  organized.' 

The  convention  of  Xew  Jersey  was  in  session  at  the  time  of 
the  ratification  by  Pennsylvania.  Mr.  Madison  had  passed  through 
the  state  in  the  autumn , on  his  way  to  the  Congress,  then  sitting 
in  the  city  of  JSTew  York,  and  could  discover  no  evidence  of  serious 
opposition  to  the  Constitution.  Lying  between  the  states  of  Yew 
lork  and  Pennsylvania,  ~New  Jersey  was  closely  watched  by  the 
friends  and  the  opponents  of  the  Constitution  in  both  of  those 
states,  and  was  likely  to  be  much  influenced  by  the  predominating 
sentiment  in  the  one  that  should  first  act.'  But  the  people  of  Yew 


^ The  Constitution  was  ratified  by  a vote  of  46  to  23. 

2 This  was  at  a meeting  held  at  Harrisburg,  September  3d,  1788. 

^ The  opposite  parties  in  Penns\dvania  were  so  much  excited  against  each 
other,  and  the  course  of  New  Jersey  was  viewed  with  so  much  interest  at  Phil- 
adelphia among  the  “ Federalists,”  that  a story  found  currency  and  belief  there 
to  the  effect  that  Clinton,  the  governor  of  New  York,  had  offered  the  state  of 
New  Jersey,  through  one  of  its  infiuential  citizens,  one  half  of  the  impost  revenue 
of  New  \ ork  if  she  would  reject  the  Constitution.  The  preposterous  character 
of  such  a proposition  stamps  the  rumor  with  gross  improbability.  But  its  cir- 
culation evinces  the  anxiety  with  which  the  course  of  New  Jersey  was  regarded 
in  the  neighboring  states,  and  it  is  certain  that  the  opposition  in  New  York 
made  great  efforts  to  influence  it. 

While  these  pages  are  passing  through  the  press,  I have  had  the  honor  of 
receiving  from  the  Historical  Society  of  Pennsylvania  a presentation  copy  of  a 
book  lately  published  by  them,  entitled  “Pennsylvania  and  the  Federal  Consti- 
tution, 1787-1788;  edited  by  John  Bach  McMaster  and  Frederick  D.  Stone.” 
I desire  here  to  make  my  acknowledgments  for  the  courtesy  of  these  gentlemen, 


04:6 


CONSTITUTIONAL  HISTORY. 


Jersey  had,  in  truth,  fairly  considered  the  whole  matter,  and  had 
found  what  their  own  interests  required.  They  alone,  of  all  the 
states,  when  the  national  Convention  was  instituted,  had  expressly 
declared  that  the  regulation  of  commerce  ought  to  be  vested  in 
the  general  government.  They  had  learned  that  to  submit  longer 
to  the  diverse  commercial  and  revenue  systems  in  force  in  New 
York  on  the  one  side  of  them,  and  in  Pennsylvania  on  the  other 
side,  would  be  like  remaining  between  the  upper  and  the  nether 
millstone.  Their  delegates  in  the  national  Convention  had,  it  is 
true,  acted  with  those  of  New  York,  in  the  long  contest  concern- 
ing the  representative  system,  resisting  at  every  step  each  depart- 
ure from  the  principle  of  the  Confederation,  until  the  compromise 
was  made  which  admitted  tlie  states  to  an  equal  representation 
in  the  Senate.  Content  with  the  security  which  this  arrangement 
afforded,  the  people  of  New  Jersey  had  the  sagacity  to  perceive 
that  their  interests  were  no  longer  likely  to  be  promoted  by  fol- 
lowing in  the  lead  of  the  Anti-Federalists  of  New  York.  Their 
delegates  unanimously  ratified  the  Constitution  on  the  12th  of 
December,  five  days  after  the  ratification  of  Pennsylvania. 

A few  days  later  there  came  from  the  far  South  news  that 
the  convention  of  Georgia  had,  with  like  unanimity,  adopted  the 
Constitution.  Neither  the  people  of  the  state,  nor  their  delegates, 
could  well  have  acted  under  the  influence  of  what  was  taking 
place  in  the  centre  of  the  Union.  Their  situation  was  too  remote 
for  the  reception,  at  that  day,  within  the  same  fortnight,  of  the 
news  of  events  that  had  occurred  in  Pennsylvania  and  New  Jer- 
sey, and  they  could  scarcely  have  read  the  great  discussions  that 
were  going  on  irt  various  forms  of  controversy  in  the  cities  of  New 
York  and  Philadelphia,  and  throughout  the  Middle  and  the  Eastern 
States.  Wasted  excessively  during  the  Kevolution,  by  the  nature 
of  the  warfare  carried  on  within  her  limits ; left  at  the  peace  to 
contend  with  a large,  powerful,  and  cruel  tribe  of  Indians  that 
pressed  upon  her  western  settlements ; and  having  her  southern 

and  to  express  niy  sense  of  the  value  of  their  labors.  This  book  gives  an  ac- 
count of  the  contest  in  Pennsylvania  over  the  new  Constitution,  and  many  in- 
structive as  well  as  amusing  details  of  the  conduct  of  the  parties  favoring  and 
opposing  it.  It  also  contains  biographical  sketches  of  the  men  who  represented 
Pennsylvania  in  her  ratifying  convention,  and  is  ornamented  with  fine  portraits 
of  fifteen  of  the  most  prominent  of  them. 


RATIFICATION  OF  CONNECTICUT. 


647 


frontier  bordering  upon  the  unfriendly  territory  of  a Sj)anisli 
colony,  the  state  of  Georgia  had  strong  motives  to  lead  her  to 
embrace  the  Constitution  of  the  United  States,  and  found  little 
in  that  instrument  calculated  to  draw  her  in  the  opposite  direc- 
tion. Her  delegates  had  resisted  the  surrender  of  control  over 
the  slave-trade,  but  they  had  acquiesced  in  the  compromise  on  that 
subject,  and  there  was  in  truth  nothing  in  the  position  in  which 
it  was  left  that  was  likely  to  give  the  state  serious  dissatisfaction 
or  uneasiness.  The  people  of  Georgia  had  something  more  im- 
portant to  do  than  to  quarrel  with  their  representatives  about  the 
principles  or  details  of  the  system  to  which  they  had  consented 
in  the  national  Convention.  They  felt  the  want  of  a general  gov- 
ernment able  to  resist,  with  a stronger  hand  than  that  of  the  Con- 
federation, the  evils  which  pressed  upon  them.'  Their  assent  was 
unanimously  given  to  the  Constitution  on  the  2d  of  January,  1788. 

The  legislature  of  Connecticut  had  ordered  a convention  to 
be  held  on  the  4th  of  January.  When  the  elections  were  over 
it  was  ascertained  that  there  was  a large  majority  in  favor  of 
the  Constitution ; but  there  was  to  be  some  opposition,  proceed- 
ing principally  from  that  portion  of  the  people  wdio  resisted  what- 
ever tended  to  the  vigor  and  stability  of  government,  a spirit  that 
existed  to  some  extent  in  all  the  Isew  England  States.  When  the 
convention  of  the  state  assembled,  the  principal  duty  of  advocat- 
ing the  adoption  of  the  Constitution  devolved  on  Oliver  Ellsworth, 
who  had  borne  an  active  and  distinguished  part  in  its  preparation. 
He  found  that  the  topic  which  formed  the  chief  subject  of  all  the 
arguments  against  the  Constitution  was  the  general  power  of  tax- 
ation which  it  would  confer  on  the  national  government,  and  the 
particular  power  of  laying  imposts.  Mr.  Ellsworth  was  eminent- 
ly qualified  to  explain  and  defend  the  proposed  revenue  system. 
While  he  contended  for  the  necessity  of  giving  to  Congress  a 


^ The  situation  of  Georgia  was  brought  to  the  notice  of  Washington  iniinecli- 
ately  after  his  first  inauguration  as  President  of  tlie  United  States,  in  an  address 
presented  to  him  by  the  legislature  of  the  state,  in  which  they  set  forth  two 
prominent  subjects  on  which  they  looked  for  protection  to  “the  infiuence  and 
power  of  the  Union.”  One  of  these  was  the  exposure  of  their  frontier  to  the 
ravages  of  the  Creek  Indians.  The  other  was  tlie  escape  of  their  slaves  into 
Florida,  whence  they  had  never  been  able  to  reclaim  them.  Both  of  these  maU 
tcrs  received  the  early  attention  of  Washington’s  administration. 


(54:8  CONSTITUTIONAL  HISTORY. 

general  power  to  levy  direct  taxes,  in  order  that  the  government 
might  be  able  to  meet  extraordinary  emergencies,  and  thus  be 
placed  upon  an  equality  with  other  governments,  he  demonstrated 
by  public  and  well-known  facts  that  an  indirect  revenue,  to  be  de- 
riv^ed  from  imposts,  would  be  at  once  the  easiest  and  most  reliable 
mode  of  defraying  the  ordinary  expenses  of  the  government,  be- 
cause it  would  interfere  less  than  any  other  form  of  taxation  with 
the  internal  police  of  the  states ; and  he  argued,  from  sufficient 
data,  that  a very  small  rate  of  duty  would  be  enough  for  this  pur- 
pose.* Under  his  influence  and  that  of  Oliver  Wolcott,  lUchard 
Law,  and  Governor  Huntington  the  Constitution  was  ratified  by 
a large  majority,  on  the  9th  of  January 

The  action  of  Connecticut  completed  the  list  of  the  states  that 
ratified  the  Constitution  without  any  formal  record  of  objections, 
and  without  proposing  or  insisting  upon  amendments.  The  op- 
position in  these  five  states  had  been  overcome  by  reason  and  ar- 
gument, and  they  were  a majority  of  the  whole  number  of  states 
whose  accession  was  necessary  to  the  establishment  of  the  gov- 
ernment. But  a new  act  in  the  drama  was  to  open  with  the 
new  year.  The  conventions  of  Massachusetts,  New  York,  and 
Virginia  were  still  to  meet,  and  each  of  them  'was  full  of  elements 
of  opposition  of  the  most  formidable  character,  and  of  different 
kinds,  which  made  the  result  in  all  of  them  extremely  doubtful. 
If  all  the  three  were  to  adopt  the  Constitution,  still  one  more  must 
be  gained  from  the  states  of  New  Hampshire,  Maryland,  and  North 
and  South  Carolina.  The  influence  of  each  accession  to  the  Con- 
stitution on  the  remaining  states  might  be  expected  to  be  consid- 
erable; but,  unfortunately,  the  convention  of  New  Hampshire  was 
to  meet  five  months  before  those  of  Virginia  and  New  York,  and 
a large  number  of  its  members  had  been  instructed  to  reject  the 
Constitution.  If  New  Hampshire  and  Massachusetts  were  to  re- 
fuse their  assent  in  the  course  of  the  winter,  the  states  that  were 
to  act  in  the  spring  could  scarcely  be  expected  to  withstand  the 

^ He  stated  the  annual  expenditure  of  tlie  government,  including  the  interest 
on  the  foreign  debt,  at  £200,000  (currency),  and  then  showed  that,  in  tlie  three 
states  of  Massachusetts,  New  York,  and  Pennsylvania,  £160,000  or  £180,000  per 
annum  had  been  raised  by  impost. 

2 Fragments  only  of  the  debates  in  tlie  convention  of  Connecticut  are  known 
to  be  preserved.  They  may  be  found  in  the  second  volume  of  Elliot’s  collection. 


THE  CONSTITUTION  IN  MASSACHUSETTS.  640 

untoward  influence  of  such  an  example,  which  would  probably 
operate  with  a constantly  accelerating  force  throughout  the  whole 
number  of  the  remainino;  states. 

The  convention  of  Massachusetts  commenced  its  session  on 
the  9th  of  January,  the  same  day  on  which  that  of  Connecticut 
closed  its  proceedings.  The  state  certainly  held  a very  high  rank 
in  the  Union.  Her  Revolutionary  history  was  filled  with  glory ; 
with  sufferings  cheerfully  borne  ; with  examples  of  patriotism 
that  were  to  give  her  enduring  fame.  The  blood  of  martyrs  in 
that  cause,  which  she  had  made  from  the  first  the  cause  of  the 
Avhole  country,  had  been  poured  profusely  upon  her  soil,  and  in 
the  earlier  councils  of  the  Union  she  had  maintained  a position  of 
commanding  influence.  But  there  had  been  in  her  political  con- 
duct, since  the  freedom  of  the  country  was  achieved,  an  unsteadi- 
ness and  vacillation  of  Avhich  her  former  reputation  gave  no  pre- 
sage. In  1783  the  legislature  had  refused  to  give  the  revenue 
powers  asked  for  by  the  Congress,  for  the  miserable  reason  that 
the  Congress  had  granted  half-pay  for  life  to  the  officers  of  the 
Revolutionary  army.  In  May,  1785,  the  legislature  adopted  a 
resolution  for  a convention  of  the  states  to  consider  the  subject  of 
enlarging  the  powers  of  the  federal  Union,  and  in  the  following 
JSTovember  they  rescinded  it.  These,  and  other  occurrences,  when 
remembered,  gave  the  friends  of  the  Constitution  elsewhere  great 
anxiety,  as  they  turned  their  eyes  towards  Massachusetts.  They 
were  fully  aware,  too,  that  the  recent  insurrection  in  that  state, 
and  the  severe  measures  which  had  followed  it,  had  created  divis- 
ions in  society  which  it  would  be  difficult,  if  not  impossible,  to  heal. 

But  it  was  not  easy  for  the  most  intelligent  men  out  of  the 
state  to  appreciate  fully  all  the  causes  that  exposed  the  Constitu- 
tion of  the  United  States  to  a peculiar  hazard  in  Massachusetts, 
and  made  it  necessary  to  procure  its  ratification  by  a kind  of  com- 
promise with  the  opposition  for  a scheme  of  amendments.  In  no 
state  was  the  spirit  of  liberty  more  jealous  and  exacting.  In  the 
midst  of  the  Revolution,  and  led  by  the  men  who  had  carried  on 
the  profound  discussions  which  preceded  it — discussions  in  which 
the  natural  rights  of  mankind  and  the  civil  rights  of  British  sub- 
jects were  examined  and  displayed  as  they  had  never  been  before 
— the  people  of  Massachusetts  had  framed  a state  constitution 
filled  with  the  most  impressive  maxims  and  the  most  solemn  se- 


CONSTITUTIONAL  HISTORY. 


050 

curities  with  which  public  liberty  has  ever  been  invested.  Not 
content  to  trust  obvious  truths  to  implication,  they  expressly  de- 
clared that  government  is  instituted  for  the  happiness  and  welfare 
of  the  governed,  and  they  fenced  it  round  not  only  with  the  chief 
restrictions  gained  by  their  English  ancestors,  from  Magna  Charta 
down  to  the  Revolution  of  1688,  but  with  many  safeguards  which 
had  not  descended  to  them  from  Runnymede  or  Westminster.  It 
may  be  that  an  anxious  student  of  politics,  examining  the  early 
constitution  of  Massachusetts — happily  in  its  most  important  feat- 
ures yet  unchanged — would  pronounce  it  unnecessarily  careful  of 
personal  rights  and  too  jealous  for  the  interests  of  liberty.  But 
no  intelligent  mind,  thoughtful  of  the  welfare  of  society,  can  now 
think  that  to  have  been  an  excess  of  wisdom  which  formed  a con- 
stitution of  republican  government  that  has  so  well  withstood  the 
assaults  of  faction  and  the  levelling  tendencies  of  a levelling  age, 
and  has  withstood  them  because,  while  it  carefully  guarded  the 
liberties  of  the  people,  it  secured  those  liberties  by  institutions 
which  stand  as  bulwarks  between  the  power  of  the  many  and  the 
rights  of  the  few. 

It  may  hereafter  become  necessary  for  me  to  consider  what 
degree  of  importance  justly  belongs  to  the  amendments  which 
the  state  of  Massachusetts,  and  to  those  which  other  states,  so  im- 
pressively insisted  ought  to  be  made  to  the  Constitution  of  the 
United  States.  Without  at  present  turning  further  aside  from  the 
narrative  of  events,  I content  myself  here  with  observing  that, 
whether  the  alleged  defects  in  the  Constitution  were  important 
or  unimportant,  a people  educated  as  the  people  of  Massachusetts 
had  been  would  naturally  regard  some  provisions  as  essential  which 
they  did  not  lind  in  the  plan  presented  to  them. 

The  general  aspect  of  parties  in  Massachusetts,  down  to  the 
time  when  the  convention  met,  has  been  already  considered.  In 
the  convention  itself  there  was  a majority  originally  opposed  to 
the  Constitution ; and  if  a vote  had  been  taken  at  any  time  be- 
fore the  proposition  for  amendments  was  brought  forward,  the 
Constitution  would  have  been  rejected.  The  opposition  consisted 
of  a full  representation  of  the  various  parties  and  interests  already 
described  as  existing  among  tlie  people  of  the  state  who  were 
unfriendly  to  it.  One  contemporary  account  gives  as  many  as 
eio'hteen  or  twenty  members  who  had  actually  been  out  in  what 


THE  CONSTITUTION  IN  MASSACHUSETTS.  051 

was  called  Shays’s  “ army.”  Wlietlier  this  enumeration  was  strict- 
ly correct  or  not,  it  is  well  known  that  the  western  counties  of  the 
state  sent  a large  number  of  men  whose  sympathies  were  with  that 
insurrection,  who  were  friends  of  paper  money  and  tender  laws, 
and  enemies  of  any  system  that  would  promote  the  security  of 
debts.  The  members  from  the  province  of  Maine  had  their  own 
s})ecial  objects  to  pursue.  In  addition  to  these  were  the  honest 
and  well-meaning  doubters,  who  had  examined  the  Constitution 
with  care  and  objected  to  it  from  principle.  The  anticipated  leader 
of  this  miscellaneous  host  was  that  celebrated  and  ardent  patriot 
of  the  Ee volution,  Samuel  Adams.  With  all  his  energy  and  his 
iron  determination  of  character,  however,  he  could  be  cautious 
when  caution  was  expedient.  (^He  had  read  the  Constitution,  and 
all  the  principal  publications  respecting  it  which  had  then  ap- 
peared, and  down  to  the  time  of  the  meeting  of  the  convention  he 
had  maintained  a good  deal  of  reserve.  But  it  was  known  that 
he  disapproved  of  it.  ^ 

This  remarkable  man— often  called  the  American  Cato— was 
far  better  fitted  to  rouse  and  direct  the  storms  of  revolution  than 
to  reconstiuct  the  political  fabric  after  revolution  had  done  its 
work.  He  had  the  passionate  love  of  liberty,  fertility  of  resource, 
and  indomitable  will  which  are  most  needed  in  a truly  great  leader 
of  a popular  struggle  with  arbitrary  power.  But,  that  struggle 
over,  his  usefulness  in  an  emergency,  like  the  one  in  which  Massa- 
chusetts was  now  placed,  was  limited  to  the  actual  necessity  for 
the  intervention  of  an  extreme  devotion  to  the  maxims  and  prin- 
ciples of  popular  freedom.  He  believed  that  there  was  such  a 
necessity,  and  he  acted  always  as  he  believed.  But  his  influence, 
at  this  time,  was  by  no  means  commensurate  with  his  power  and 
reputation  at  a former  day,  and  he  appears  to  have  wisely  avoided 
a direct  contest  with  the  large  body  of  very  able  men  who  sup- 
ported the  Constitution. 

That  body  of  men  would  certainly  have  been,  in  any  assembly 
convened  for  such  a purpose,  an  overmatch  in  debate  for  Samuel 
Adams ; for  they  were  the  civilians  Fisher  Ames,  Parsons,  King, 
Sedgwick,  Gorham,  Dana,  Gore,  Bowdoin,  and  Sumner,  the  Kev- 
olutionary  officers  Heath,  Lincoln,  and  Brooks,  and  several  of  the 
most  distinguished  clergymen  in  the  state.  The  names  of  the 
members  who  acted  on  the  same  side  with  Mr.  Adams,  and  were 


CONSTITUTIONAL  HISTORY. 


652 

then  regarded  as  leaders  of  the  opposition,  have  reached  posterity 
in  no  other  connection.’  But  some  of  the  elements  of  which  that 
opposition  was  composed  could  not  he  controlled  by  any  superior- 
ity in  debate,  and  were,  therefore,  little  in  need  of  great  powers  of 
discussion  or  great  wisdom  in  council.  So  far  as  their  objections 
related  to  the  powers  to  be  conferred  on  the  general  government, 
or  to  the  structure  of  the  proposed  system,  they  could  be  answered, 
and  many  of  them  could  be,  and  were,  convinced.  But  with  re- 
spect to  what  they  considered  the  defects  of  the  Constitution,  the- 
oretical reasoning,  however  able,  could  have  no  influence  over  men 
whose  minds  were  made  up ; and  it  became,  as  the  reader  will  see, 
necessary  to  make  an  effort  to  gain  a majority  by  some  couise 
of  action  which  would  involve  the  concession  that  the  proposed 
system  required  amendment. 

There  were  great  hazards  attending  this  course,  in  reference  to 
its  effect  on  other  states,  although  it  was  not  impossible  to  pro- 
cure by  it  the  ratification  of  this  convention.  IN  ot withstanding  all 
that  had  detracted  from  the  former  high  standing  of  the  state— 
notwithstanding  the  easy  explanation  that  might  be  given  of  the 
influence  of  her  late  internal  disturbances  upon  her  subsequent 
political  affairs — she  was  still  Massachusetts ; still  she  was  the 
eldest  of  all  the  states  but  one— still  she  held  in  the  sacred  places 
of  her  soil  the  bones  of  the  first  martyrs  to  liberty — still  she  was 
renowned,  as  she  has  ever  been,  for  her  intelligence— still  she  wore 
a name  of  more  than  ordinary  consideration  among  her  sisters  of 
the  Confederacy.  If  it  should  go  forth  to  New  York,  to  Virginia, 
to  the  Carolinas,  that  Massachusetts  had  pronounced  the  Constitu- 
tion unfit  for  the  acceptance  of  a free  people,  or  had  declared  that 
public  liberty  could  not  be  preserved  under  it  without  the  addi- 
tion of  provisions  which  its  framers  had  not  made,  the  effect  might 
be  disastrous  beyond  all  previous  calculation.  The  legislature  of 
New  York,  in  session  at  the  same  time  with  the  convention  of 
Massachusetts,  Avas  much  divided  on  the  question  of  submitting 
the  Constitution  to  a convention,  and  it  was  the  opinion  of  careful 
observers  that  the  result  in  either  way  in  the  latter  state  would 

' Three  of  them,  Widgery,  Thompson,  and  Nason,  were  from  Maine ; there  was 
a Dr.  Taylor  from  the  county  of  Worcester,  and  a Mr.  Bishop  from  the  county  ot 
Bristol.  These  gentlemen  carried  on  the  greater  part  of  the  discussion  against 
the  Constitution. 


THE  CONSTITUTION  IN  MASSACHUSETTS.  C53 

influence  that  in  the  former.  In  Virginia  the  elections  for  their 
convention  were  soon  to  take  place.  In  Pennsylvania  the  minor- 
ity were  becoming  restless  under  their  defeat,  and  were  agitating 
plans  which  looked  to  the  obstruction  of  the  government  when 
an  attenijn  should  be  made  to  organize  it.  The  convention  of 
South  Carolina  was  not  to  meet  until  May,  and  North  Carolina 
stood  in  an  extremely  doubtful  position.  A great  weight  of  re- 
sponsibility rested,  therefore,  upon  the  convention  of  Massachusetts. 

\Its  proceedings  commenced  with  a desultory  debate  upon  the 
several  parts  of  the  instrument,  which  lasted  until  the  30th  of 
January;! the  friends  of  the  Constitution  having  carefully  pro- 
vided, by  a vote  at  the  outset,  that  no  separate  question  should  be 
taken.  The  discussion  of  the  various  objections  having  been  ex- 
hausted, Parsons  ‘ moved  that  the  instrument  be  assented  to  and 
ratified.  One  or  two  general  speeches  followed  this  motion,  and 
then  Hancock,  the  president  of  the  convention,  descended  from  the 
chair,  and,  with  some  conciliatory  observations,  laid  before  it  a 
proposition  for  certain  amendments.  This  step  was  not  taken  by 
him  upon  his  own  suggestion  merely,  although  he  was  doubtless 
very  willing  to  be  the  medium  of  a reconciliation  between  the 
contending  parties.  He  was  at  that  time  governor  of  the  state, 
and  had  been  placed  in  the  chair  of  the  convention,  partlv  in  defer- 
ence to  his  official  station  and  his  personal  eminence,  and  partly 
because  he  held  a rather  neutral  position  with  respect  to  the  Con- 
stitution. These  circumstances,  as  well  as  his  Eevolutionary  dis- 
tinction, led  the  friends  of  the  Constitution  to  seek  his  intervention  : 
and  his  love  of  popularity  and  deference  made  the  office  of  arbitra- 
tor exceedingly  agreeable  to  him.  The  selection  was  a wise  one,  for 
Hancock  had  great  influence  with  the  classes  of  men  composing 
the  opposition,  and  he  could  not  be  suspected  of  any  undue  admf- 
lation  of  the  system  the  adoption  of  which  he  was  to  recommend. 

He  proceeded  with  characteristic  caution.  It  does  not  appear, 
from  Avhat  is  preserved  of  the  remarks  with  which  he  presented 
his  amendments,  whether  he  intended  they  should  become  a con- 
dition precedent  to  the  ratiflcation,  or  should  be  adopted  as  a rec- 
ommendation subsequent  to  the  assent  of  the  convention  to  the 
Constitution  then  before  it.  He  brought  them  forward,  he  said. 


’ Theo»)hilLis  Parsons,  afterwards  the  celebrated  chief-justice  of  Massachusetts. 


(554  CONSTITUTIONAL  HISTORY. 

to  quiet  the  apprehensions  and  remove  the  doubts  of  gentlemen, 
relying  on  their  candor  to  bear  him  witness  that  his  wishes  for  a 
good  constitution  were  sincere.  But  the  form  of  ratification  which 
he  proposed  contained  a distinct  and  separate  acceptance  of  the 
Constitution,  and  the  amendments  followed  it,  with  a recom- 
mendation that  they  “ be  introduced  into  the  said  Constitution.” 
Samuel  Adams,  with  much  commendation  of  the  governor’s  prop- 
osition, immediately  affected  to  understand  it  as  recommending 
conditional  amendments,  and  advocated  it  in  that  sense.  Other 
members  of  the  opposition  understood  it  in  the  opposite  sense,  and, 
fearing  its  effect,  insisted  that  the  convention  had  no  power  to 
propose  amendments,  and  that  there  could  be  no  probability  that, 
if  recommended  to  the  attention  of  the  first  Congress  that  might 
sit  under  the  Constitution,  they  would  ever  be  adopted.  Upon 
both  of  these  points  the  arguments  of  the  other  side  were  sufficient 
to  convince  a few  of  the  more  candid  members  of  the  opposition, 
and  the  Constitution  was  ratified  on  the  Tth  of  February  by  a 
majority  of  nineteen  votes,^  the  ratification  being  followed  by  a 
recommendation  of  certain  amendments,  and  an  injunction  ad- 
dressed to  the  representatives  of  the  state  in  Congress  to  insist  at 
all  times  on  their  being  considered  and  acted  upon  in  the  mode 
provided  by  the  fifth  article  of  the  Constitution. 

The  smallness  of  the  majority  in  favor  of  the  Constitution  was 
in  a great  degree  compensated  by  the  immediate  conduct  of  those 
who  had  opposed  it.  Many  of  them,  before  the  final  adjournment, 
expressed  their  determination,  now  that  it  had  received  the  assent 
of  a majority,  to  exert  all  their  influence  to  induce  the  people  to 
anticipate  the  blessings  which  its  advocates  expected  from  it. 
They  acted  in  accordance  with  their  professions ; and  those  por- 
tions of  the  people  whose  sentiments  they  had  represented  exhib- 
ited generally  the  same  candor  and  patriotism,  and  acquiesced  at 
once  in  the  result.  This  course  of  the  opposition  in  Massachusetts 
was  observed  elsewhere,  and  largely  contributed  to  give  to  the  ac- 
tion of  the  state,  in  proposing  amendments,  a salutary  influence 
in  some  quarters,  which  would  otherwise  have  probably  failed  to 
attend  it. 

The  amendments  proposed  by  the  convention  of  Massachusetts 


Yeas,  187;  nays,  168. 


REJOICING  IN  BOSTON. 


055 


were,  as  was  claimed  by  those  who  advocated  them,  of  a general, 
and  not  a local  character;  hut  they  were  at  the  same  time  highly 
characteristic  of  the  state.  They  may  he  divided  into  three  classes. 
One  of  them  einjbraced  that  general  declaration  which  was  after- 
wards incor[)orated.\vith  the  amendments  to  the  Constitution,  and 
which  expressly  reserved  to  the  states  or  the  people  the  powers 
not  delegated  to  the  United  States.  Another  class  of  them  com- 
])rehended  certain  restraints  upon  the  powers  granted  to  Congress 
hy  the  Constitutfoh,Avitli  respect  to  elections,  direct  taxes,  the 
commercial  power,  the  jurisdiction  of  the  courts,  and  the  power 
to  consent  to  the  holding  of  titles  or  offices  conferred  by  foreign 
sovereigns.  The  third  class  contemplated  the  two  great  provisions 
of  a presentment  hy  a grand  jury,  for  crimes  by  which  an  infamous 
or  a capital  punishment  might  he  incurred,  and  trial  by  jury  in  civil 
actions  at  the  common  law  between  citizens  of  different  states. 

The  people  of  Boston,  although  in  general  strongly  in  favor  of 
the  Constitution,  had  carefully  abstained  from  every  attempt  to 
influence  the  convention.  But  now  that  the  ratification  w^as 
carried  they  determined  to  give  to  the  event  all  the  importance 
that  belonged  to  it,  by  public  ceremonies  and  festivities.  On  the 
17th  of  February  there  issued  from  the  gates  of  Faneuil  Hall  an 
imposing  procession  of  five  thousand  citizens,  embracing  all  the 
trades  of  the  town  and  its  neighborhood,  each  with  its  appropriate 
decorations,  emblems,  and  mottoes.  In  the  centre  of  this  long 
pageant,  to  mark  the  relation  of  everything  around  it  to  maritime 
commerce,  and  the  relation  of  all  to  the  new  government,  was 
borne  the  ship  Federal  Constitution^  with  full  colors  flying,  and 
attended  by  the  merchants,  captains,  and  seamen  of  the  port.*  On 
the  following  day  the  rejoicings  were  terminated  by  a public  ban- 
quet, at  which  each  of  the  states  that  had  then  adopted  the  Constitu- 
tion was  separately  toasted,  the  minorities  of  Connecticut  and  Mas- 
sachusetts were  warmly  praised  for  their  frank  and  patriotic  submis- 
sion, and  strong  hopes  Avere  expressed  of  the  State  of  Hew  York. 

In  this  manner  the  Federalists  of  Massachusetts  Avisely  sought 
to  kindle  the  enthusiasm  of  the  country,  and  to  conciliate  the 
opinion  of  the  states  which  Avere  still  to  act,  in  favor  of  the  neA\" 


’ Tills  "was  the  first  of  a series  of  similar  pageants,  which  took  place  in  the 
other  principal  cities  of  the  Union,  in  honor  of  the  ratification  of  the  Constitution. 


CONSTITUTIONAL  HISTORY. 


(>5G 

Constitution.  The  influence  of  their  course  did  not  fail  in  some 
quarters.  In  the  convention  of  New  Hampshire,  which  assembled 
immediately  after  that  of  Massachusetts  was  adjourned,  although 
there  was  a majority  who,  either  bound  by  instructions  or  led  by 
their  own  opinions,  would  have  rejected  the  Constitution  if  re- 
quired to  vote  upon  it  immediately,  yet  that  same  majority  was 
composed  chiefly  of  men  willing  to  hear  discussion,  willing  to  be 
convinced,  and  likely  to  feel  the  influence  of  what  had  occurred 
in  the  leading  state  of  New  England.  There  was  a body  of  Fed- 
eralists in  New  Hampshire  acting  in  concert  with  the  leading  men 
of  that  party  in  Massachusetts.  They  caused  the  same  form  of 
ratification  and  the  same  amendments  which  had  been  adopted  in 
the  latter  state,  with  some  additional  ones,  to  be  presented  to  their 
own  convention. ‘ The  discussions  changed  the  opinions  of  many 
of  the  members,  but  it  was  not  deemed  expedient  to  incur  the 
hazard  of  a vote.  The  friends  of  the  Constitution  found  it  neces- 
sary to  consent  to  an  adjournment,  in  order  that  the  instructed 
delegates  might  have  an  opportunity  to  lay  before  their  constitu- 
ents the  information  which  they  had  themselves  received,  and  of 
which  the  people  in  the  more  remote  parts  of  the  state  were  great- 
ly in  need.  Unfortunately,  however,  for  the  course  of  things  in 
other  states,  the  occurrence  of  a general  election  in  New  Hamp- 
shire made  it  necessary  to  adjourn  the  convention  until  the  middle 
of  June.  We  have  seen  what  was  the  effect  of  this  proceeding  in 
Virginia,  where  it  was  both  misunderstood  and  misrepresented. 
But  it  saved  the  Constitution  in  New  Hampshire. 

Six  states  only,  therefore,  had  adopted  the  Constitution  at  the 
opening  of  the  spring  of  1788.  The  convention  of  Maryland  as- 
sembled at  Annapolis  on  the  21st  of  April.  The  convention  of 


' The  form  of  ratification  and  the  amendments  introduced  by  Hancock  into 
the  convention  of  Massachusetts  were  drawn  by  Theophilus  Parsons.  They  were 
probably  communicated  to  General  Sullivan,  the  president  of  the  New  Hamp- 
shire convention,  by  his  brother,  James  Sullivan,  an  eminent  lawyer  of  Boston, 
afterwards  governor  of  Massacliusctts.  The  render  should  compare  the  Massa- 
chusetts amendments  witli  those  of  tlie  other  states  whose  action  followed  that 
of  Massachusetts,  for  the  purpose  of  seeing  the  influence  which  they  exerted. 
(All  the  amendments  may  l>e  fonnd  in  the  Journals  of  the  Old  Congress,  Vol. 
XIIL,  Appendix.)  See  also  post.  Chap.  XXXV,  as  to  the  effect  of  the  course 
of  IMassachusetts  on  the  mind  of  Jefferson. 


REJOICING  IN  BALTIMORE. 


()57 

South  Carolina  was  to  follow  in  ]\[ay,  and  the  conventions  of  Vir- 
ginia and  New  Voi’k  were  to  meet  in  June.  So  critical  was  the 
period  in  which  the  people  of  ^[aryland  were  to  act,  that  Wash- 
ington considered  that  a postponement  of  their  decision  would 
cause  the  final  defeat  of  the  Constitution ; for  if,  under  the  influ- 
ence of  such  a postjionement,  following  that  of  New  Hampshire, 
South  Carolina  should  reject  it,  its  fate  would  turn  on  the  deter- 
mination of  Virginia. 

The  people  of  Maiyland  appear  to  have  been  fully  aware  of 
the  importance  of  their  course.  They  not  only  elected  a large 
majority  of  delegates  known  to  be  in  favor  of  the  Constitution, 
but  a majorit}"  of  the  counties  instructed  their  members  to  ratify 
it  as  speedily  as  possible,  and  to  do  no  other  act.  This  settled 
determination  not  to  consider  amendments,  and  not  to  have  the 
action  of  the  state  misinterpreted  or  its  influence  lost,  gave  great 
dissatisfaction  to  the  minority.  Their  efforts  to  introduce  amend- 
ments were  disposed  of  quite  summarily.  The  majority  would 
entertain  no  proposition  but  the  single  question  of  ratification, 
which  was  carried  by  sixty -three  votes  against  eleven-,  on  the  28th 
of  April. 

On  the  1st  of  May  there  were  public  rejoicings  and  a pro- 
cession of  the  trades,  in  Baltimore,  followed  by  a banquet,  a ball, 
and  an  illumination.  In  this  procession  the  miniature  ship  Fed- 
eralist^ which  was  afterwards  presented  to  Washington,  and  long 
rode  at  anchor  in  the  Potomac  opposite  Mount  Vernon,  was  car- 
ried, as  the  type  of  commerce  and  the  consummate  production  of 
American  naval  architecture.'  The  next  day  a packet  sailed  from 
the  port  of  Baltimore  for  Charleston,  carrying  the  news  of  the 
ratification  by  Maryland.'*  In  how  many  days  this  coaster  ” 


^ This  little  vessel  sailed  from  Baltimore  on  the  1st  of  June,  and  arrived  at 
Mount  Vernon,  “ completely  rigged  and  liighly  ornamented,”  on  the  8th.  It  was 
a fine  specimen  of  the  tlien  state  of  the  meclianic  arts.  See  an  account  of  it  in 
Washington’s  Works,  IX.  375,  376. 

* There  was  then  no  land  communication  between  the  two  places  that  could 
have  carried  intelligence  in  less  than  a month.  K.  letter  written  by  General 
Pinckney  to  Wasliington  on  the  24th  of  May,  announcing  the  result  in  South 
Carolina,  was  more  than  four  weeks  on  its  way  to  Mount  Vernon.  (Washing- 
ton's Works,  IX.  389.)  Washington  had  received  the  same  news  by  way  of  Bal- 
timore soon  after  its  arrival  tliere. 

L— 42 


058  CONSTITUTIONAL  HISTORY. 

performed  her  voyage  is  not  known ; but  it  is  a recorded,  though 
now  forgotten,  fact  among  the  events  of  this  period,  that  on  her 
return  to  Baltimore,  where  she  arrived  on  Saturday,  the  31st  of 
May,  the  same  vessel  brought  back  the  welcome  intelligence  that 
on  the  23d  of  that  month,  “ at  five  o’clock  in  the  afternoon,”  the 
convention  of  South  Carolina  had  ratified  the  Constitution  of  the 
United  States.  A salute  of  cannon  on  Federal  Hill,  in  the  neigh- 
borhood of  Baltimore,  spread  the  joyful  news  far  down  the  waters 
of  the  Chesapeake  to  the  shores  of  Virginia,  and  bold  express  riders 
placed  it  in  Philadelphia  before  the  following  Monday  evening. 

Such  w^as  the  anxiety  with  which  the  friends  of  the  Constitu- 
tion in  the  centre  of  the  Union  watched  the  course  of  events  in 
the  remaining  states.  The  accession  of  South  Carolina  was  natu- 
rally regarded  as  very  important.  Her  delegates  in  the  national 
Convention  had  assumed  what  might  be  thought,  at  home  and 
elsewhere,  to  be  a great  responsibility.  They  had  taken  a promi- 
nent part  in  the  settlement  of  the  compromises  which  became  nec- 
essary between  the  Northern  and  the  Southern  States.  They  had 
consented  to  a full  commercial  power,  to  be  exercised  by  a majority 
in  both  houses  of  Congress ; to  a power  to  extinguish  the  slave- 
trade  in  twent}^  years  ; and  to  a power  of  direct  and  indirect  taxa- 
tion, exports  alone  excepted.  Would  the  people  of  South  Caro- 
lina consider  the  provisions  made  for  their  peculiar  demands  as 
equivalents  for  what  had  been  surrendered?  Would  they  ac- 
quiesce in  a system  founded  in  the  necessities  for  local  sacrifices, 
standing  as  they  did  at  the  extremity  of  the  interests  involved  in 
the  Southern  side  of  the  adjustment? 

It  is  not  probable  that  the  people  of  South  Carolina,  at  the 
time  of  their  adoption  of  the  Constitution,  supposed  that  they  had 
any  solid  reasons  for  dissatisfaction  with  such  of  its  arrangements 
as  in  any  way  concerned  the  subject  of  slavery.  A good  deal  was 
said,  ad  captanduin^  by  the  opponents  of  the  Constitution,  on  these 
])oints,  but  it  does  not  appear  to  have  been  said  with  much  effect. 
No  man  who  has  ever  been  placed  by  the  state  of  South  Carolina 
in  a public  position  has  been  more  true  to  her  interests  and  rights 
than  General  Pinckney ; and  General  Pinckney  furnished  to  the 
people  of  the  state — speaking  from  his  place  in  the  legislature  on 
his  return  from  the  national  Convention — what  he  considered,  and 
they  received,  as  a complete  answer  to  all  that  was  addressed  to 


THE  CONSTITUTION  IN  SOUTH  CAROLINA.  059 

their  local  fears  and  prejudices,  on  these  particular  topics.  When 
he  had  shown  that,  by  the  universal  admission  of  the.country,  the 
Constitution  had  given  to  the  general  government  no  power  to 
emancipate  the  slaves  within  the  several  states,  and  that  it  had 
secured  a right  which  did  not  previously  exist,  of  recovering  those 
who  might  escape  into  other  states ; that  the  slave-trade  would 
remain  open  for  twenty  years,  a period  that  would  suffice  for  the 
sujiply  of  all  the  labor  of  that  kind  which  the  state  would  require ; 
and  that  the  admission  of  the  blacks  into  the  basis  of  representa- 
tion was  a concession  in  favor  of  the  state  of  singular  importance 
as  well  as  novelty,  he  had  disposed  of  every  ground  of  opposition 
relating  to  these  points.  And  so  the  people  of  the  state  manifest- 
ly considered. 

But  there  Avas  one  part  of  the  arrangements  included  in  the 
Constitution  on  which  they  appear  to  have  thought  that  they  had 
more  reason  to  pause ; and  it  is  quite  important  that  Ave  should 
understand  both  the  grounds  of  their  doubt  and  the  grounds  on 
AA^hich  they  yielded  their  assent  to  this  part  of  the  system.  South 
Carolina  Avas  then,  and  Avas  ever  likely  to  be,  an  exporting  state. 
Some  of  her  people  feared  that,  if  a full  poAver  to  regulate  com- 
merce by  the  Azotes  of  a majority  in  the  tAvo  houses  of  Congress 
were  to  be  exercised  in  the  passage  of  a navigation  act,  the 
Eastern  States,  in  Avhose  behalf  they  Avere  asked  to  grant  such  a 
poAver,  would  not  be  able  to  furnish  shipping  enough  to  export 
the  products  of  the  planting  states.  This  apprehension  arose  en- 
tirely from  a want  of  information ; Avhich  some  of  the  friends  of 
the  Constitution  supplied,  Avliile  it  Avas  under  discussion.  They 
showed  that,  if  all  the  exported  products  of  Virginia,  the  Caro- 
linas,  and  Georgia  were  obliged  to  be  carried  in  American  bot- 
toms, the  Eastern  States  were  then  able  to  furnish  more  than  ship- 
ping enough  for  the  purpose ; and  that  this  shipping  must  also 
compete  with  that  of  the  Middle  States.  Still  it  remained  true 
that  the  grant  of  the  commercial  poAver  Avould  enable  a majority 
in  Congress  to  exclude  foreign  vessels  from  the  carrying  trade  of 
the  United  States,  and  so  far  to  enhance  the  freights  on  the  prod- 
ucts of  South  Carolina.  What  then  Avere  the  motiA^es  Avhich  ap- 
pear to  have  led  the  convention  of  that  state  to  agree  to  this  con- 
cession of  the  commercial  poAA^er  ? 

It  is  evident  from  the  discussions  Avhich  took  place  in  the  legis- 


G60 


CONSTITUTIONAL  HISTORY. 


lature,  and  which  had  great  influence  in  the  subsequent  conven- 
tion, that  the  attention  of  the  people  of  South  Carolina  was  not 
confined  to  the  particular  terms  and  arrangements  of  the  com- 
promises which  took  place  in  the  formation  of  the  Constitution. 
They  looked  to  the  propriety,  expediency,  and  justice  of  a general 
power  to  regulate  commerce,  apart  from  the  compromise  in  which 
it  was  involved.  They  admitted  the  commercial  distresses  of  the 
Northern  States ; they  saw  the  policy  of  increasing  the  maritime 
strength  of  those  states,  in  order  to  encourage  the  growth  of  a 
navy ; and  they  considered  it  neither  prudent,  nor  fit,  to  give  the 
vessels  of  all  foreign  nations  a right  to  enter  American  ports  at 
pleasure,  in  peace  and  in  war,  and  whatever  might  be  the  com- 
mercial legislation  of  those  nations  towards  the  United  States. 
For  these  reasons  a large  majority  of  the  people  of  South  Caro- 
lina were  willing  to  make  so  much  sacrifice,  be  it  more  or  less,  as 
was  involved  in  the  surrender  to  a majority  in  Congress  of  the 
power  to  regulate  commerce.’ 

Still,  the  Constitution  was  not  ratified  without  a good  deal  of 
opposition  on  the  part  of  a considerable  minority.  As  the  con- 
vention drew  towards  the  close  of  its  proceedings,  an  effort  was 
made  to  carry  an  adjournment  to  the  following  autumn,  in  order 
to  gain  time  for  the  anticipated  rejection  of  the  Constitution  by 
Virginia.  This  motion  probably  stimulated  the  convention  to 
act  more  decisively  than  they  might  otherwise  have  done,  for  it 
touched  the  pride  of  the  state  in  the  wrong  direction.  After  a 
spirited  discussion  it  was  rejected  by  a majority  of  forty-six  votes, 
and  the  Constitution  was  thereupon  ratified  by  a majority  of 
seventy-six.  Several  amendments  were  then  adopted,  to  be  pre- 
sented to  Congress  for  consideration,  three  of  which  were  sub- 
stantially the  same  with  three  of  those  proposed  by  Massachu- 
setts." 

On  the  27th  of  May  there  was  a great  procession  of  the  trades, 
in  Charleston,  in  honor  of  the  accession  of  the  state,  in  which  the 
ship  Federalist,  drawn  by  eight  white  horses,  was  a conspicuous 
object,  as  it  had  been  in  the  processions  of  other  cities. 


1 See  tlie  course  of  argument  of  Edward  Rutledge,  General  Pinckney,  Robert 
Ilarnwell,  Commodore  Gillon,  and  others,  as  gjven  in  Elliot,  IV.  253-31 G. 

2 See  the  Amendments,  Journals  of  the  Old  Congress,  Vol.  XIII.,  Appendix. 


CHAPTER  XXXy. 

Ratifications  of  Xew  Hampshire,  Virginia,  and  Xew  York,  with 
Proposed  Amendments. 

South  Carolina  T7as  the  eighth  state  that  had  ratified  the  Con- 
stitution, and  one  other  only  was  required  for  its  inauguration. 
In  this  posture  of  affairs  the  month  of  May  in  the  year  1Y88  was 
closed.  An  intense  interest  was  to  be  concentrated  into  the  next 
two  months,  which  were  to  decide  the  question  whether  the  Con- 
stitution was  ever  to  be  put  into  operation.  The  convention  of 
Virginia  was  to  meet  on  the  2d,  and  that  of  New  York  on  the 
17th,  of  J une  ; the  convention  of  New  Hampshire  stood  adjourned 
to  the  18th  of  the  same  month.  The  latter  assembly  was  to  meet 
at  Concord,  from  which  place  intelligence  would  reach  the  Middle 
and  Southern  States  through  Boston  and  the  city  of  New  York. 
The  town  of  Poughkeepsie-,  where  the  convention  of  New"  York 
was  to  sit,  lay  about  midway  betw^een  the  cities  of  Albany  and 
New  York,  on  the  east  bank  of  the  Hudson.  The  land  route 
from  the  city  of  New  York  to  Richmond,  w^here  the  convention 
of  Virginia  w"as  to  meet,  was  of  course  through  the  city  of  Phil- 
adelphia. The  distance  from  Concord  to  Poughkeepsie,  through 
Boston,  Springfield,  and  Hudson,  w^as  about  tw-o  hundred  and  fifty 
miles.  The  distance  from  Poughkeepsie  to  Richmond,  through 
the  cities  of  New  York,  Philadelphia,  and  Baltimore,  was  about 
four  hundred  and  fifty  miles.  The  public  mails,  over  any  part  of 
these  distances,  w^ere  not  carried  at  a rate  of  more  than  fifty  miles 
for  each  day,  and  over  a large  part  of  them  they  could  not  have 
been  carried  so  fast.  The  information  needed  at  such  a crisis 
could  not  w"ait  the  slow  progress  of  the  public  conveyances. 

No  one  could  tell  how  long  the  conventions  of  New  York  and 
Virginia  might  be  occupied  with  the  momentous  question  that  was 
to  come  before  them.  It  was  evident,  however,  that  there  wns  to 
be  a great  struggle  in  both  of  them,  and  it  w"as  extremely  impor- 


662 


CONSTITUTIONAL  HISTORY. 


tant  that  intelligence  of  the  final  action  of  New  Hampshire  should 
be  received  in  both  at  the  earliest  practicable  moment.  For,  what- 
ever might  be  the  weight  due  to  the  example  of  New  Hampshire 
under  other  circumstances,  if,  before  the  conventions  of  New 
York  and  Virginia  had  decided,  it  should  appear  that  nine  states 
had  ratified  the  Constitution,  the  course  of  those  bodies  might  be 
materially  infiuenced  by  a fact  of  so  much  consequence  to  the  fut- 
ure position  of  the  Union,  and  to  the  relations  in  which  those  two 
states  were  to  stand  to  the  new  government.  It  was  equally  im- 
portant, too,  that  whatever  might  occur  in  the  conventions  of  New 
York  and  Virginia  should  be  known  respectively  in  each  of  them, 
as  speedily  as  possible.  About  the  middle  of  May,  therefore, 
Hamilton  arranged  with  Madison  for  the  transmission  of  letters 
between  Kichmond  and  Poughkeepsie  by  horse  expresses;  and 
by  the  12th  of  June  he  had  made  a similar  arrangement  with 
liufus  King,  General  Knox,  and  other  Federalists  at  the  East,  for 
the  conveyance  from  Concord  to  Poughkeepsie  of  intelligence 
concerning  the  result  in  New  Hampshire. 

A very  full  convention  of  delegates  of  the  people  of  Virginia 
assembled  at  Kichmond  on  the  2d  of  June,  embracing  nearly  all 
the  most  eminent  public  men  of  the  state,  except  Washington  and 
Jefferson.  All  parties  felt  the  weight  of  responsibility  resting 
upon  the  state.  Every  state  that  had  hitherto  acted  finally  on 
the  subject  had  ratified  the  Constitution ; in  three  of  them  it  had 
been  adopted  unanimously ; in  several  of  the  others  it  had  been 
sanctioned  by  large  majorities  ; and  in  those  in  which  amendments 
had  been  proposed  they  had  not  been  made  conditions  precedent 
to  the  adoption.  So  far,  therefore,  as  the  voice  of  any  state  had 
pronounced  the  Constitution  defective,  or  dangerous  to  any  gen- 
eral or  particular  interest,  the  mode  of  amendment  provided  by  it, 
to  be  employed  after  it  had  gone  into  operation,  had  been  relied 
upon  as  sufficient  and  safe.  The  opposition  in  Virginia  were  con- 
sequently reduced  to  this  dilemma:  they  must  either  take  the 
responsibility  of  rejecting  the  Constitution  entirely,  or  they  must 
assume  the  equally  hazardous  responsibility  of  insisting  that  the 
ratification  of  the  state  should  be  given  only  upon  the  condition 
of  previous  amendments.  They  were  prepared  to  do  both,  or 
either,  according  to  the  prospects  of  success ; for  their  convictions 
were  fixed  against  the  system  proposed ; their  abilities,  patriot- 


THE  CONSTITUTION  IN  VIRGINIA. 


663 


ism,  coiu’ago,  aiid  personal  influence  were  of  a high  order;  and 
their  devotion  to  what  they  deemed  the  interests  of  Vii’ginia  was 
unquestionable. 

They  were  led,  as  I have  already  said  they  were  to  be,  by 
Patrick  Henry,  whose  reputation  had  suffered  no  abatement  since 
the  period  when  he  blazed  into  the  darkened  skies  of  the  Kevolu- 
tion — when  his  untutored  eloquence  electrified  the  heart  of  Vir- 
ginia, and  became,  as  has  been  well  said,  even  “a  cause  of  the 
national  independence.”  * He  had  held  the  highest  honors  of  the 
state,  but  had  retired,  poor,  and  worn  down  by  twenty  years  of 
public  service,  to  rescue  his  private  affairs  by  the  practice  of  a 
profession  which,  in  some  of  its  duties,  he  did  not  love,  and  for 
Avhich  he  had,  perhaps,  a single  qualification  in  his  amazing  ora- 
torical powers.  His  popularity  in  Virginia  was  unbounded.  It 
was  the  popularity  that  attends  genius,  when  thrown  with  heart 
and  soul,  and  with  every  impulse  of  its  being,  into  the  cause  of 
popular  freedom ; and  it  was  a popularity  in  which  reverence  for 
the  stern  independence  and  the  self-sacrificing  spirit  of  the  patriot 
was  mingled  with  admiration  for  the  splendid  gifts  of  oratory 
which  Nature,  and  Nature  alone,  had  bestowed  upon  him.  But 
Mr.  Henry  was  rightly  appreciated  by  his  contemporaries.  They 
knew  that,  though  a wise  man,  his  wisdom  lacked  comprehensive- 
ness, and  that  the  mere  intensity  Avith  Avhich  he  regarded  the  ends 
of  public  liberty  Avas  likely  to  mislead  his  judgment  as  to  the 
means  by  Avhich  it  Avas  to  be  secured  and  upheld.  The  chief  ap- 
prehension of  his  opponents,  on  this  important  occasion,  Avas  lest 
the  jDower  of  his  eloquence  over  the  feelings  or  prejudices  of  his 
auditory  might  lead  the  sober  reflections  of  men  astray. 

He  Avas  at  this  time  fifty-tAvo  years  of  age.  Although  feeling 
or  affecting  to  feel  himself  an  old  and  broken  man,  he  AAms  yet 
undoubtedly  master  of  all  his  natural  poAA^^rs.  Those  poAvers  he 
exerted  to  the  utmost  to  defeat  the  Constitution  in  the  convention 
of  Virginia.  He  employed  every  art  of  his  peculiar  rhetoric,  every 
resource  of  invectiAm,  of  sarcasm,  of  appeal  to  the  fears  of  his  audi- 


1 Notice  of  Henry,  in  the  National  Portrait  Gallery  of  Distinguished  Ameri- 
cans, Vol.  II.  Mr.  Jefferson  lias  said  that  Henry’s  power  as  a popular  orator  was 
greater  than  that  ot  any  man  he  had  ever  heard,  and  that  Henry  “appeared  to 
speak  as  Homer  wrote.”  Jefferson’s  AVorks,  I.  4. 


G64 


CONSTITUTIONAL  HISTORY. 


ence  for  liberty ; every  dictate  of  local  prejudice  and  state  pride. 
But  he  employed  them  all  with  the  most  sincere  conviction  that 
the  adoption  of  the  proposed  Constitution  would  be  a wrong  and 
dangerous  step.  Nor  is  it  surprising  that  he  should  have  so  re- 
garded it.  lie  had  formed  to  himself  an  ideal  image  which  he 
was  fond  of  describing  as  the  American  spirit.  This  national 
spirit  of  liberty,  erring  perhaps  at  times,  but  in  the  main  true  to 
right  and  justice  as  well  as  to  freedom,  was  with  him  a kind  of 
guardian  angel  of  the  republic.  He  seems  to  have  considered  it 
able  to  correct  its  own  errors  without  the  aid  of  any  powerful  sys- 
tem of  general  government — capable  of  accomplishing  in  peace  all 
that  it  had  unquestionably  effected  for  the  country  in  war.  As 
he  passed  out  of  the  troubles  and  triumphs  of  the  Revolution  into 
the  calmer  atmosphere  of  the  Confederation,  his  reliance  on  this 
American  spirit,  and  his  jealousy  for  the  maxims  of  public  liberty, 
led  him  to  regard  that  system  as  perfect,  because  it  had  no  direct 
legislative  authority.  He  could  not  endure  the  thought  of  a gov- 
ernment, external  to  that  of  Virginia,  and  yet  possessed  of  the 
power  of  direct  taxation  over  the  people  of  the  state.  He  re- 
garded with  utter  abhorrence  the  idea  of  laws  binding  the  people 
of  Virginia  by  the  authority  of  the  people  of  the  United  States ; 
and  thinking  that  he  saw  in  the  Constitution  a purely  national  and 
consolidated  government,  and  refusing  to  see  the  federal  principle 
which  its  advocates  declared  was  incorporated  in  its  system  of 
representation,  he  shut  his  eyes  resolutely  upon  all  the  evils  and 
defects  of  the  Confederation,  and  denounced  the  new  plan  as  a 
monstrous  departure  from  the  only  safe  construction  of  a union. 
He  belonged,  too,  to  that  school  of  public  men,  some  of  whose 
principles  in  this  respect  it  is  vain  to  question,  who  considered  a 
bill  of  rights  essential  in  every  republican  government  that  is 
clothed  with  powers  of  direct  legislation. 

On  the  first  day  of  the  session,  at  the  instance  of  Mr.  Mason, 
the  convention  determined  not  to  take  a vote  upon  any  question 
until  the  whole  Constitution  had  been  debated  by  paragraphs; 
but  the  discussions,  in  fact,  ranged  over  the  whole  instrument  with- 
out any  restriction.  The  opposition  was  opened  by  Henry,  in  a 
powerful  speech  of  a general  nature,  in  which  he  demanded  the 
reasons  for  such  a radical  change  in  the  character  of  the  general 
government.  That  the  new  plan  was  a consolidated  government, 


THE  CONSTITUTION  IN  VIRGINIA. 


665 

and  not  a confederacy,  he  held  to  be  indisputable.  The  language 
of  the  preamble,  which  said  We,  the  People,  and  not  We,  the  States, 
made  this  perfectly  clear.  But  states  were  the  characteristics  and 
the  soul  of  a confederation.  If  states  were  not  to  be  the  agents 
of  this  new  compact  it  must  be  one  great,  consolidated,  national 
government  of  the  people  of  all  the  states.  This  perilous  innova- 
tion, altogether  beyond  the  powers  of  the  Convention  which  had 
]woposed  it,  had  given  rise  to  differences  of  opinion  which  had 
gone  to  inflammatory  resentments  in  different  parts  of  the  coun- 
try. He  denied  altogether  the  existence  of  any  necessity  for 
exposing  the  public  peace  to  such  a hazard. 

As  soon  as  Henry  had  sat  down,  the  governor,  Edmund 
Kaudolph,  rose,  to  place  himself  in  a position  of  some  apparent 
inconsistenc}^  He  had,  as  we  have  seen,  refused  to  sign  the  Con- 
stitution. On  his  return  to  Virginia  he  had  addressed  a long,  ex- 
culpatory letter  to  the  Speaker  of  the  House  of  Delegates,  giving 
his  reasons  for  this  refusal ; which  were,  in  substance,  that  he  con- 
sidered the  Constitution  required  important  amendments,  and  that, 
as  it  would  go  to  the  conventions  of  the  states  to  be  accepted  or 
rejected  as  a whole,  without  power  to  amend,  he  thought  that  his 
signature  would  preclude  him  from  proposing  the  changes  and  ad- 
ditions which  he  deemed  essential.  This  letter  had  attracted  much 
attention  both  in  and  out  of  Virginia,  and  Kandolph  was  conse- 
quently, up  to  this  moment,  regarded  as  a firm  opponent  of  the 
Constitution.  He  chose,  however,  to  incur  the  charge  of  that 
kind  of  inconsistency  which  a statesman  should  never  hesitate  to 
commit,  when  he  finds  that  the  public  good  is  no  longer  consistent 
with  his  adherence  to  a former  opinion.  He  declared  that  the 
day  of  previous  amendments  had  passed.  The  ratification  of  the 
Constitution  by  eight  states  had  placed  Virginia  and  the  country 
in  a critical  position.  If  the  Constitution  should  not  be  adopted 
by  the  number  of  states  required  to  put  it  into  operation  there 
could  be  no  Union ; and  if  it  were  to  be  ratified  by  that  number, 
and  Virginia  were  to  reject  it,  she  would  have  at  least  two  states 
at  the  south  of  her  which  would  belong  to  a confederacy  of  which 
she  would  not  be  a member.  He  should,  therefore,  vote  for  the 
unconditional  adoption  of  the  Constitution,  looking  to  future 
amendments,  although  he  had  little  expectation  that  they  would 
be  made. 


GG6 


CONSTITUTIONAL  HISTORY. 


This  announcemenl  took  the  opposition  bj  surprise.  But  they 
relaxed  none  of  their  efforts.  They  subjected  every  part  of  the 
Constitution  to  a rigid  scrutiny,  and  to  the  most  subtle  course  of 
reasoning,  as  well  as  to  one  which  addressed  the  prejudices  of  the 
common  mind.  Some  of  the  most  important  only  of  the  topics 
on  which  they  enlarged  can  be  noticed  here. 

Their  first  and  chief  object  was  to  show  that  the  Constitution 
presented  a national  and  consolidated  government,  in  the  place  of 
the  Confederation,  and  that  under  such  a government  the  liberties 
of  the  people  of  the  states  could  not  be  secure.  This  character 
of  the  proposed  government  Mr.  Mason  deduced  from  the  power 
of  direct  taxation,  which,  he  contended,  entirely  changed  the  Con- 
federacy into  one  consolidated  government.  This  power,  being 
at  discretion  and  unrestrained,  must  carry  everything  before  it. 
The  general  government  being  paramount  to,  and  in  every  re- 
spect more  powerful  than,  the  state  governments,  the  latter  must 
give  way  ^ for  two  concurrent  powers  of  direct  taxation  cannot 
long  exist  together.  Assuming  that  taxes  were  to  be  levied  for 
the  use  of  the  general  government,  the  mode  in  which  they  were 
to  be  assessed  and  collected  was  of  the  utmost  consequence,  and 
it  ought  not  to  be  surrendered  by  the  people  of  Virginia  to  those 
who  had  neither  a knowledge  of  their  situation  nor  a common 
interest  with  them.  He  w^ould  cheerfully  acquiesce  in  giving  an 
effectual  alternative  for  the  power  of  direct  taxation.  He  would 
give  the  general  government  power  to  demand  their  quotas  of  the 
states,  with  an  alternative  of  laying  direct  taxes  in  case  of  non- 
compliance.  The  certainty  of  this  conditional  power  would,  in 
all  probability,  prevent  the  application  of  it,  and  the  sums  neces- 
sary for  the  Union  would  then  be  raised  by  the  states,  and  by 
those  who  would  best  know  how  they  could  be  raised. 

Mr.  Henry  took  a broader  ground.  He  argued  that  the  Con- 
stitution presented  a consolidated  government,  because  it  spoke  in 
the  name  of  the  people,  and  not  in  the  name  of  the  states.  It 
was  neither  a monarchy  like  England — a compact  between  prince 
and  people,  with  checks  on  the  former  to  secure  the  liberty  of  the 
latter;  nor  a confederacy  like  Holland  — an  association  of  inde- 
pendent states,  each  retaining  its  individual  sovereignty ; nor  yet 
a democracy,  in  which  the  people  retain  securely  all  their  rights. 
It  was  an  alarming  transition  from  a confederacy  to  a consolidated 


MADISON’S  ARGUMENTS. 


C07 

government.  It  was  a step  as  radical  as  tliat  which  separated  us 
from  Great  Britain.  The  rights  of  conscience,  trial  by  jury,  lib- 
erty of  the  press,  all  immunities  and  franchises,  all  pretensions  to 
human  rights  and  privileges,  were  rendered  insecure,  if  not  lost, 
by  such  a transition.  It  was  said  that  eight  states  had  adopted 
it.  lie  declared  that,  if  twelve  states  and  a half  had  adopted  it, 
he  would,  Avith  manly  firmness,  and  in  spite  of  an  erring  world, 
reject  it.  ‘‘You  are  not  to  inquire,”  said  he,  “ how  your  trade 
may  be  increased,  or  how  you  are  to  become  a great  and  prosper- 
ous people,  but  hoAV  your  liberties  may  be  secured and  then, 
kindling  Avith  the  old  fire  of  his  earlier  days,  and  Avith  the  recol- 
lection of  Avhat  he  had  done  and  suffered  for  the  liberties  of  his 
country,  he  broke  forth  in  one  of  his  most  indignant  and  impas- 
sioned moods.' 

Madison,  ahvays  cool,  clear,  and  sensible,  ansAvered  these  ob- 
jections. He  described  the  neAV  government  as  haAung  a mixed 
character.  It  Avould  be  in  some  respects  federal,  in  others  con- 
solidated. The  manner  in  Avhich  it  Avas  to  be  ratified  established 
this  double  character.  The  parties  to  it  Avere  to  be  the  people, 
but  not  the  people  as  composing  one  great  society,  but  the  peo- 
ple as  composing  thirteen  sovereignties.  If  it  Avere  a purely  con- 
solidated goA^ernment,  the  assent  of  a majority  of  the  people  would 
be  sufficient  to  establish  it.  But  it  AA^'as  to  be  binding  on  the  peo- 
ple of  a state  only  by  their  oAvn  separate  consent ; and  if  adopted 
by  the  people  of  all  the  states,  it  AA’ould  be  a goA’^ernment  estab- 
lished, not  through  the  intervention  of  their  legislatures,  but  by 
the  people  at  large.  In  this  respect  the  distinction  between  the 
existing  and  the  proposed  governments  AA^as  very  material. 

The  mode  in  Avhich  the  Constitution  Avas  to  be  amended  also 
displayed  its  mixed  character.  A majority  of  the  states  could  not 
introduce  amendments,  nor  yet  Avere  all  the  states  required  ; three 
fourths  of  them  must  concur  in  alterations ; and  this  constituted 
a departure  from  the  federal  idea.  Again,  the  members  of  one 
branch  of  the  legislature  Avere  to  be  chosen  by  the  people  of  the 
states  in  proportion  to  their  numbers ; the  members  of  the  other 

1 It  is  said  in  the  newspapers  of  that  period  that  Henry  w^as  on  his  legs  in 
one  speech  for  seven  hours.  I think  it  must  have  been  the  one  from  which  I 
have  made  the  abstract  in  the  text.  But  he  made  a great  many  speeches,  quite 
as  earnest. 


668 


CONSTITUTIONAL  HISTORY. 


were  to  be  elected  by  the  states  in  their  equal  and  political  capaci- 
ties. Had  the  government  been  completely  consolidated,  the  Sen- 
ate would  have  been  chosen  in  the  same  way  as  the  House;  had 
it  been  completely  federal,  the  House  would  have  been  chosen  in 
the  same  way  as  the  Senate.  Thus  it  was  of  a complex  nature ; 
and  this  complexity  would  be  found  to  exclude  the  evils  of  abso- 
lute consolidation  and  the  evils  of  a mere  confederacy.  Finally, 
if  Virginia  were  separated  from  all  the  states  her  power  and  au- 
thority would  extend  to  all  cases ; in  like  manner  were  all  powers 
vested  in  the  general  government  it  would  be  a consolidated  gov- 
ernment ; but  the  powers  of  the  general  government  are  enumer- 
ated ; it  can  only  operate  in  certain  cases  ; it  has  legislative  powers 
on  defined  and  limited  objects,  beyond  which  it  cannot  extend  its 
jurisdiction. 

With  respect  to  the  powers  proposed  to  be  conferred  on  the 
new  government,  he  conceived  that  the  question  was  whether  they 
were  necessary.  If  they  were,Virginia  was  reduced  to  the  dilemma 
of  either  submitting  to  the  inconvenience  which  the  surrender  of 
those  powers  might  occasion,  or  of  losing  the  Union.  He  then 
proceeded  to  show  the  necessity  for  the  power  of  direct  taxation ; 
and  in  answer  to  the  apprehended  danger  arising  from  this  power 
united  with  the  consolidated  nature  of  the  government— thus  giv- 
ing it  a tendency  to  destroy  all  subordinate  or  separate  authority 
of  the  states — he  admitted  that,  if  the  general  government  were 
wholly  independent  of  the  governments  of  the  states,  usurpation 
might  be  expected  to  the  fullest  extent ; but  as  it  was  not  so 
independent,  but  derived  its  authority  partly  from  those  govern- 
ments and  partly  from  the  people — the  same  source  of  power 
there  was  no  danger  that  it  would  destroy  the  state  governments. 

In  this  manner,  extending  to  all  the  details  of  the  Constitu- 
tion, the  discussion  proceeded  for  nearly  a week,  the  opposition 
aiming  to  show  that  at  every  point  it  exposed  the  liberties  of  the 
people  to  great  hazards ; Henry  sustaining  nearly  the  whole  bur- 
den of  the  argument  on  that  side,  and  fighting  with  great  vigor 
against  great  odds.^  At  length,  finding  himself  sorely  pressed,  he 

1 There  has  been,  I am  aware,  a modern  scepticism  concerning  Patrick  Henry's 
abilities;  but  I cannot  share  it.  He  was  not  a man  of  much  information,  and  he 
had  no  great  breadth  of  mind.  But  he  must  have  been,  not  only  a very  able 
debater,  but  a good  parliamentary  tactician.  Tlie  manner  in  which  he  carried 


JEFFERSON’S  OPINIONS.  ^(59 

took  advantage  of  an  allusion  made  by  his  opponents  to  the  debts 
due  from  the  United  States  to  France,  to  introduce  the  name  of 
Jefferson. 

I might,”  said  he,  not  from  public  authority,  but  from  good 
information,  tell  you  that  his  opinion  is  that  you  reject  this  gov- 
ernment. His  character  and  abilities  are  in  the  highest  estima- 
tion ; he  is  well  acquainted  in  every  respect  with  this  country ; 
equally  so  with  the  policy  of  the  European  nations.  This  illus- 
trious citizen  advises  you  to  reject  this  government  till  it  be 
amended.  His  sentiments  coincide  entirely  with  ours.  His  at- 
tachment to,  and  services  done  for,  this  country  are  well  known. 
At  a great  distance  from  us,  he  remembers  and  studies  our  hap- 
piness. Living  in  splendor  and  dissipation,  he  thinks  yet  of  bills 
of  rights—thmks  of  those  little,  despised  things  called  maxims. 
Let  us  follow  the  sage  advice  of  this  common  friend  of  our  hap- 
piness.” ^ ^ 

At  the  time  when  Mr.  Henry  made  this  statement  he  had  seen 
a letter  written  by  Mr.  Jefferson  from  Paris,  in  the  precedino* 
February,  which  was  much  circulated  among  the  opposition  in 
A irginia,  and  in  which  Mr.  J efferson  had  expressed  the  hope  that 
the  first  nine  conventions  might  accept  the  Constitution,  and  the 
remaining  four  might  refuse  it,  until  a Declaration  of  Eights  had 
been  annexed  to  it.“  Mr.  Henry  chose  to  construe  this  into  an 


on  tlie  opposition  to  the  Constitution  in  the  convention  of  Virginia,  for  nearly  a 
wliole  month,  shows  that  he  possessed  other  powers  besides  those  of  great  natural 
eloquence. 


Elliot,  III,  152,  Debates  in  the  Virginia  Convention, 

‘ Under  date  of  February  7fch,  1788,  Mr.  Jefferson  wrote  from  Paris,  in  a private 
letter  to  a gentleman  in  Virginia,  as  follows : “ I wish,  with  ail  mv  soul,  that  tlie 
nine  hrst  conventions  may  accept  the  new  Constitution,  because  this  will  secure 
to  us  the  good  it  contains,  which  I tliiiik  great  and  important.  But  I equally 
wish  that  the  four  latest  conventions,  whichever  they  be,  may  refuse  to  accede 
to  It  tall  a Declaration  of  Bights  be  annexed.  This  would  probably  command 
the  offer  of  such  a declaration,  and  thus  give  to  the  whole  fabric,  perhaps  as 
much  perfection  as  any  one  of  that  kind  ever  had.  By  a Declaration  of  Ri<rhts 
I mean  one  which  shall  stipulate  freedom  of  religion,  freedom  of  the  press  free- 
dom of  commerce  against  monopolies,  trial  by  juries  in  all  cases,  no  suspensions 
ot  the  hahas  corpus,  no  standing  armies.  These  are  fetters  against  doino-  evil 
which  no  honest  government  should  decline.  There  is  another  strong  feature 
in  the  new  Constitution  which  I as  strongly  dislike.  That  is,  the  perpetual  re- 


QYO  CONSTITUTIONAL  HISTORY. 

advice  to  Virginia  to  reject  the  Constitution.  But  this  use  of  Mr. 
Jefferson’s  opinion  was  not  strictly  justifiable,  since  Virginia,  in 
the  actual  order  of  events,  might  be  the  ninth  state  to  act ; for 
the  convention  of  New  Hampshire  was  not  to  reassemble  until 
nearly  three  Aveeks  after  the  first  meeting  of  that  of  Virginia,  m 
Avhich  Mr.  Henry  was  then  speaking.  The  friends  of  the  Consti- 
tution, therefore,  became  somewhat  restive  under  this  attempt  to 
employ  the  influence  of  Jefferson  against  them.  Without  saying 
anything  disrespectful  of  him,  but,  on  the  contrary,  speaking  of 
him  in  the  highest  terms  of  praise  and  honor,  they  complained  of 
the  impropriety  of  introducing  his  opinion— saying  that,  if  the 
opinions  of  important  men  not  within  that  convention  Avere  to 
govern  its  deliberations,  they  could  adduce  a name  at  least  equally 
great  on  their  side  and  they  then  contended  that  Mr.  Jefferson’s 
letter  did  not  admit  of  the  application  that  had  been  given  to  it.^ 
But  the  truth  Avas,  that  the  assertions  of  his  opponents  respect- 
ing Ncav  Hampshire,  and  the  ambiguous  form  of  Mr.  Jefferson’s 
opinion,  gave  Henry  all  the  opportunity  he  Avanted  to  employ  that 
opinion  for  the  purpose  for  Avhich  he  introduced  it.  You  say, 
said  he,  “ that  you  are  absolutely  certain  New  Hampshire  will 
adopt  this  government.  Then  she  Avill  be  the  ninth  state  ; and  if 
Mr.  Jefferson’s  advice  is  of  any  value,  and  this  system  requires 


eli-ibmtv  of  the  president.  Of  this  I expect  no  amendment  at  present,  because 
I do  not  see  that  anybody  has  objected  to  it  on  yonr  side  the  water.  But  it  will 
be  productive  of  cruel  distress  to  our  country,  even  in  your  day  and  mine.  1 he 
importance  to  France  and  England  to  have  our  government  in  the  hands  of  a 
friend  or  foe  will  occasion  their  interference  by  money,  and  even  by  arms.  Our 
president  will  be  of  much  more  consequence  to  them  than  a hing  ot  Polanc . 
We  must  take  care,  however,  that  neither  this  nor  any  other  objection  to  the 
new  form  produces  a schism  in  our  Union.  That  would  be  an  incurable  evil,  e- 
cause  near  friends  hilling  out  never  reunite  cordially;  whereas,  all  of  us  going 
ton-ether,  we  shall  be  sure  to  cure  the  evils  of  our  new  Constitution  before  they 
do^reat  harm.’’  (Jetferson’s  Works,  II.  355.)  That  Mr.  Jetfersmi  intended  this 
letter  should  be  used  as  it  was  in  the  convention  of  Virginia,  is  not  probaile, 
but  it  would  seem  from  the  care  he  took  to  state  a plan  of  proceeding  in  the 
adoption  of  the  Constitution,  that  he  intended  his  suggestions  should  be  known. 
His  subsequent  opinion  will  be  found  in  a note  below. 

^ Alluding,  evidently,  to  Washington. 

•2  See  the  speeches  of  Pendleton  and  Madison,  in  reply  to  Henry.  Elliot,  iii. 
804,  329. 


THE  CONSTITUTION  IN  VIRGINIA. 


071 


amendments,  we,  Avho  are  to  be  one  of  the  four  remaining  states, 
ought  to  reject  it  until  amendments  are  obtained.”  ' 

Notwithstanding  tlie  efforts  of  Madison  to  counteract  this  ar- 
tifice, it  gave  the  opposition  great  strength,  because  it  enabled 
them  to  tlirow  the  whole  weight  of  their  arguments  against  the 
alleged  defects  and  dangers  of  the  Constitution  into  the  scale  of 
an  absolute  rejection.  Mr.  Jefferson’s  subsequent  opinion,  formed 
after  he  had  received  intelligence  of  the  course  of  Massachusetts, 
had  not  then  been  received,  and  indeed  did  not  reach  this  country 
until  after  the  convention  of  Virginia  had  acted."  The  opposition 
Avent  on,  therefore,  Avith  reneAved  vigor,  to  attack  the  Constitution 
in  every  part  Avhich  they  considered  vulnerable. 

Among  the  topics  on  Avhich  they  expended  a great  deal  of 
force  Avas  that  of  the  navigation  of  the  Mississippi.  They  em- 
ployed this  subject  for  the  purpose  of  influencing  the  votes  of 
members  Avho  represented  the  interests  of  that  part  of  Virginia 
Avhich  is  noAV  Kentucky.  They  first  extorted  from  Madison  and 
other  gentlemen,  Avho  had  been  in  the  Congress  of  the  Confedera- 
tion, a statement  of  the  negotiations  Avhich  had  nearly  resulted  in 
a temporary  surrender  of  the  right  in  the  Mississippi  to  Spain." 
They  then  made  use  of  the  folio Aving  argument.  It  had  appeared, 
they  said,  from  those  transactions,  that  the  Northern  and  Middle 
States,  seven  in  number,'^  Avere  in  favor  of  bartering  aAA^ay  this 


1 Elliot,  III.  314. 

2 On  the  27th  of  May,  1788,  Mr.  Jefferson  wrote  from  Paris  to  Colonel  Carring- 
ton, as  follows:  “I  learn  with  great  pleasure  the  progress  of  the  new'  Constitu- 
tion. Indeed,  I have  presumed  it  would  gain  on  the  public  mind,  as  I confess  it 
has  on  my  own.  At  first,  though  I saw  that  the  great  mass  and  groundwork 
was  good,  I disliked  many  appendages.  Reflection  and  discussion  have  cleared 
otf  most  of  those,  lou  have  satisfied  me  as  to  the  query  I had  put  to  you  about 
the  right  of  direct  taxation.  My  first  wdsh  was  that  nine  states  would  adopt  it, 
and  that  the  others  might,  by  holding  off,  produce  the  necessary  amendments. 
But  the  plan  of  Massachusetts  is  far  preferable,  and  will,  I hope,  be  followed  by 
those  who  are  yet  to  decide,”  etc.  (Jefferson’s  Works,  II.  404.)  Colonel  Car- 
rington, the  person  to  whom  this  letter  was  addressed,  was  a member  of  Con- 
gress, and  received  it  at  New  York,  about  the  2d  of  July,  when  it  was  seen  by 
Madison.  See  a letter  from  Madison  to  E.  Randolph  of  that  date,  among  the 
Madison  papers.  Elliot,  V.  573. 

See  the  Index,  'cerh.  “Mississippi  River.” 

* They  meant  the  four  New  England  States  and  New  York,  Pennsylvania, 


CONSTITUTIONAL  HISTORY. 


672 

great  interest  for  commercial  privileges  and  advantages;  that 
those  states,  particularly  the  Eastern  ones,  would  be  influenced 
further  by  a desire  to  suppress  the  growth  of  new  states  in  the 
western  country,  and  to  prevent  the  emigration  of  their  own  peo- 
ple thither,  as  a means  of  retaining  the  power  of  governing  the 
Union ; and  that  the  surrender  of  the  Mississippi  could  be  made 
by  treaty,  under  the  Constitution,  by  the  will  of  the  president  and 
the  votes  of  ten  senators,'  whereas,  under  the  Confederation,  it 
never  could  be  done  without  the  votes  of  nine  states  in  Congress. 

It  must  be  allowed  that  there  had  been  mmch  in  the  history  of 
this  matter  on  which  harsh  reflections  could  be  made  by  both  sec- 
tions of  the  Union.  But  it  was  not  correct  to  represent  the  Eastern 
and  Middle  States  as  animated  by  a desire  to  prevent  the  settle- 
ment of  the  western  country,  or  to  say  that  they  would  be  ready 
at  any  time  to  barter  away  the  right  in  the  Mississippi.  Seven  of 
the  states  had  consented,  in  a time  of  war  and  of  great  peril,  to 
the  proposal  of  a temporary  surrender  of  the  right  to  Spain,  just 
when  it  was  supposed  that  negotiations  between  Spain  and  Great 
Britain  might  result  in  a coalition  which  would  deprive  us  of  the 
river  forever,  and  when  it  was  thought  that  a temporary  cession 
would  fix  the  permanent  right  in  our  favor.^  This  was  undoubt- 
edly an  error ; but  it  was  one  from  which  the  country  had  been 
saved  by  the  disputes  which  arose  respecting  the  constitutional 
power  of  seven  states  to  give  instructions  for  a treaty,  and  by  the 
prospect  of  a reconstruction  of  the  general  government.  Uow, 
therefore,  that  an  entirely  new  constitutional  system  had  been 
prepared,  the  real  question,  in  relation  to  this  very  important  sub- 
ject, was  one  of  a twofold  character.  It  involved,  first,  the  moral 
probabilities  respecting  the  wishes  and  policy  of  a majority  of  the 
states ; and,  secondly,  a comparison  of  the  means  afforded  by  the 
Constitution  for  protecting  the  national  right  to  the  Mississippi, 
with  those  afforded  by  the  Confederation— assuming  that  any  state 
or  states  might  wish  to  surrender  it. 

and  Maryland.  New  Jersey  and  Delaware  were  supposed  to  be  with  the  four 
Southern  States  on  tins  question. 

1 Ten  would  be  two  thirds  of  the  constitutional  quorum  of  fourteen  ; so  that 
the  argument  supposed  only  a quorum  to  be  present. 

2 See  Mr.  Madison’s  explanation  made  in  the  convention  of  Virginia.  Elliot, 

III.  346. 


ir. 


THE  CONVENTION  IN  VIRGINIA.  G73 

Upon  this  question  Mr.  Madison  made  an  answer  to  the  opposi- 
tion wliich  shows  how  accurately  he  foresaw  the  relations  between 
the  western  and  tlie  eastern  portions  of  the  Union,  and  how  justl}^ 
he  estimated  the  future  working  of  the  Constitution  with  respect 
to  the  preservation  of  the  Mississippi,  or  any  other  national  riglit. 

If  interest  alone,  he  said,  were  to  govern  the  Eastern  States, 
they  must  derive  greater  advantage  from  holding  the  Mississippi 
than  even  the  Southern  States ; for  if  the  carrying  trade  were 
their  natural  province,  it  must  depend  mainly  on  agriculture  for 
its  support,  and  agriculture  was  to  be  the  great  employment  of  the 
western  country.  But  in  addition  to  this  security  of  local  interest 
the  Constitution  would  make  it  necessary  for  two  thirds  of  all  the 
senators  present — and  those  present  would  represent  all  the  states, 
if  all  attended  to  their  duty — to  concur  in  every  treaty.  The 
president,  who  would  represent  the  people  at  large,  must  also  con- 
cur. In  the  House  of  Kepresentatives  the  landed,  rather  than  the 
commercial,  interest  would  predominate  ; and  the  House  of  Kepre- 
sentatives, although  not  to  be  directly  concerned  in  the  making  of 
treaties,  would  have  an  important  influence  in  the  government. 
A weak  system  had  produced  the  project  of  surrendering  the  Mis- 
sissippi ; a strong  one  would  remove  the  inducement.' 

In  the  midst  of  these  discussions,  and  while  the  opposition  were 
making  every  effort  to  protract  them  until  the  23d  of  June— when 
the  assembling  of  the  legislature  would  afford  a colorable  pretext 
for  an  adjournment — Colonel  Oswald  of  Philadelphia  arrived  at 
Richmond,  with  letters  from  the  Anti-Federalists  of  Hew  York 
and  Pennsylvania  to  the  leaders  of  that  party  at  Richmond,  for 
the  purpose  of  concerting  a plan  for  the  postponement  of  the  de- 
cision of  Virginia  until  after  the  meeting  of  the  convention  of 
Hew  York.  It  was  supposed  that,  if  this  could  be  effected,  the 
opponents  of  the  Constitution  in  Hew  York  would  be  able  to  make 
some  overture  to  the  opposition  in  Virginia  for  the  same  course 
of  action  in  both  states.  If  this  could  not  be  brought  about,  it 
was  considered  by  the  opposition  at  Richmond  that  the  chances 
of  obtaining  a vote  for  previous  amendments  would  be  materially 
increased  by  delay.  The  parties  in  their  convention  were  nearly 
balanced,  at  this  time.  Mr.  Madison  estimated  the  Federal  ma- 


’ Debates  in  tlie  Virginia  Convention,  Elliot,  III.  344-347. 
I.— 4:3 


674 


CONSTITUTIONAL  HISTORY. 


jority  at  not  more  than  three  or  four  votes,  if  indeed  the  Federal- 
ists had  a majority,  on  the  17th  of  June,  the  day  on  which  the 
convention  of  New  F ork  was  to  meet.' 

l^ut  we  must  now  leave  the  convention  of  Virginia,  and  turn 
our  eyes  to  the  pleasant  village  on  the  banks  of  the  Hudson  where 
the  convention  of  New  York  was  already  assembling.  Hamilton 
was  there,  and  was  its  leading  spirit.  How  vigilant  and  thought- 
ful he  was,  we  know — sometimes  watching  for  the  messenger  who 
might  descend  the  eastern  hills  with  reports  from  New  Hampshire ; 
sometimes  turning  to  the  south  and  listening  for  the  footfall  of 
his  couriers  from  Virginia,  but  always  preparing  to  meet  difficul- 
ties, always  ready  to  contest  every  inch  of  ground,  and  never  los- 
ing sight  of  the  great  end  to  be  accomplished.  The  hours  were 
slow  and  heavy  to  him.  The  lines  of  horse-expresses  which  he 
had  so  carefully  adjusted,  and  at  whose  intersection  he  stood  to 
collect  the  momentous  intelligence  they  would  bring  him,  were 
indeed  a marvel  of  enterprise  at  that  day ; but  how  unlike  were 
they  to  the  metallic  lines  that  now  daily  gather  for  us,  from  all  the 
ends  of  the  land  and  with  the  speed  of  lightning,  minute  notices 
of  the  most  trivial  or  the  most  important  events!  Still,  such  as 
his  apparatus  was,  it  was  all  that  could  be  had ; and  he  awaited, 
alike  with  a firm  patience  and  a faithful  hope,  for  the  decisive  re- 
sults. Even  at  this  distance  of  time  we  share  the  fluctuations  of 
his  anxious  spirit,  and  our  patriotism  is  quickened  by  our  sympathy. 

Karely,  indeed,  if  ever,  was  there  a statesman  having  more  at 
stake  in  what  he  could  not  personally  control,  or  greater  cause  for 
solicitude  concerning  the  public  weal  of  his  own  times  or  that  of 
future  ages,  than  Hamilton  now  had.  His  own  prospects  of  use- 
fulness, according  to  the  principles  which  had  long  guided  him, 
and  the  happiness  or  the  misery  of  Ids  country,  were  all,  as  he  was 
deeply  convinced,  involved  in  what  might  happen  within  any  hour 
of  those  few  eventful  days.  The  rejection  of  the  Constitution  by 
Virginia  would,  in  all  probability,  cause  its  rejection  by  New  York. 
Its  rejection  by  those  states  would,  as  he  sincerely  believed,  be  fol- 


’ He  thought  at  this  moment  that,  if  the  Constitution  should  be  lost,  the 
Mississippi  question  would  be  the  cause.  The  members  from  Kentucky  were 
then  generally  hostile.  See  a letter  from  Madison  to  Hamilton,  of  June  16th, 
Hamilton’s  Works,  I.  457. 


HAMILTON’S  POSITION. 


C75 


lowed  by  eventual  disunion  and  civil  war.  But  if  the  Constitution 
could  be  established,  he  could  see  the  way  open  to  the  happiness 
and  welfare  of  the  whole  Union;  for  although  it  was  not  in  all 
respects  the  system  that  he  would  have  preferred,  he  had  sliown, 
in  the  Federalist,  how  profoundly  he  understood  its  bearing  upon 
the  interests  of  the  country,  into  what  harmony  he  could  bring  its 
various  ]>rovisions,  and  what  powerful  aid  he  could  give  in  adjust- 
ing it  into  its  delicate  relations  to  the  states.  He  had,  too,  already 
conceived  the  hope  that  its  early  administration  might  be  under- 
taken by  Washington;  and  with  the  government  in  the  hands  of 
Washington,  Hamilton  could  foresee  the  success  which  to  us  is  now 
historical. 

To  say  that  Hamilton  was  ambitious,  is  to  say  that  he  was 
human ; and  he  was  by  no  means  free  from  human  imperfections. 
But  his  was  the  ambition  of  a great  mind,  regulated  by  principle, 
and  made  incapable,  by  the  force  and  nature  of  his  convictions,  of 
seeking  personal  aggrandizement  through  any  course  of  public 
policy  of  which  those  convictions  were  not  the  mainspring  and 
the  life.  In  no  degree  is  the  character  of  any  other  American 
statesman  undervalued  or  disparaged,  when  I insist  on  the  impor- 
tance to  all  America,  through  all  time,  of  Hamilton’s  public  char- 
acter and  conduct  in  this  respect.  It  was  because  his  future’ 
opportunities  for  personal  distinction  and  usefulness  were  now 
evidently  at  stake  in  the  success  of  a system  that  would  admit  of 
the  exercise  of  his  great  powers  in  the  service  of  the  country — a 
system  that  would  afford  at  once  a field  for  their  exercise  and  for 
the  application  of  his  political  principles ; and  because  he  could 
neither  seek  nor  find  distinction  in  a line  of  politics  which  tended 
to  disunion — that  his  position  at  this  time  is  so  interesting  and  im- 
portant. As  a citizen  of  New  York,  too,  his  position  was  person- 
ally critical.  He  had  carried  on  a vigorous  contest  with  the  op- 
ponents of  the  Constitution  in  that  state ; he  had  encountered 
obloquy  and  misrepresentation  and  rancor — perhaps  he  had  pro- 
voked them.  He  had  told  the  people  of  the  state,  for  years,  that 
they  had  listened  to  wrong  counsels  when  they  had  lent  them- 
selves to  measures  that  retarded  the  growth  of  a national  spirit 
and  an  efficient  general  government.  The  correctness  of  his 
judgment  was  now,  therefore,  openly  and  palpably  in  the  issue. 
His  public  policy,  with  reference  to  the  relations  of  the  state 


CONSTITUTIONAL  HISTORY. 


67G 

to  the  Union,  was  now  to  stand,  or  to  fall,  with  the  Constitution 
proposed. 

When  he  entered  the  convention  of  the  state  he  was  convinced 
that  the  Anti-Federalists  were  determined  that  New  York  should 
not  become  a member  of  the  new  Union,  whatever  might  be  done 
by  the  other  states.^  He  had  also  received  information  which  led 
him  to  believe  that  the  governor,  Clinton,  had  in  conversation  de- 
clared the  union  unnecessary ; but  of  this,  if  true,  he  could  make 
no  public  use.  Ilis  suspicions  were  certainly  justified  by  the  ten- 
dency of  the  arguments  made  use  of  by  the  opposition,  during  the 
few  first  days  of  the  session ; for  it  was  the  tendency  of  those  argu- 
ments to  maintain  the  idea  that  New  Y ork  could  very  well  stand 
alone,  even  if  the  Constitution  should  be  established  by  nine  states, 
she  refusing  to  be  one  of  them.  AYith  this  view  they  pressed  the 
consideration  under  which  they  had  all  along  acted,  that  the  Con- 
federation, if  amended,  would  be  sufficient  for  all  the  proper  pur- 
poses of  a general  government ; and  their  plan  for  such  an  amend- 
ment of  the  Confederation  w^as,  to  provide  that  its  requisitions  for 
money  should  continue  to  be  made  as  they  had  been,  and  that 
Congress  should  have  the  new  power  of  compelling  payment  by 
force,  when  a state  had  refused  to  comply  with  a requisition. 

Hamilton  answered  this  suggestion  with  great  energy.  It  is 
inseparable,  he  said,  from  the  disposition  of  bodies  which  have  a 
constitutional  power  of  resistance,  to  inquire  into  the  merits  of  a 
law.  This  had  ever  been  the  case  with  the  federal  requisitions. 
In  this  examination  the  states,  unfurnished  Avith  the  lights  which 
directed  the  deliberations  of  the  general  government,  and  incapa- 
ble of  embracing  the  general  interests  of  the  Union,  had  almost 
uniformly  weighed  the  requisitions  by  their  OAvn  local  interests, 
and  had  only  executed  them  so  far  as  answered  their  particular 
convenience  or  advantage.  Hut  if  Ave  have  national  objects  to 
pursue,  Ave  must  have  national  revenues.  If  requisitions  are  made 
and  are  not  complied  Avith,  Avhat  is  to  be  done  ? To  coerce  the 
states  Avould  be  one  of  the  maddest  projects  ever  deA^ised.  Ao 
state  Avould  ever  suffer  itself  to  be  used  as  the  instrument  of  coerc-^ 
ing  another.  A federal  standing  army,  then,  must  enforce  the 
requisitions,  or  the  federal  treasury  Avould  be  left  Avithout  supplies 


1 See  Ihs  coiTespoudence  witli  Madison,  Works,  I.  pp.  450-4G9. 


THE  CONSTITUTION  IN  NEW  YORK. 


077 


ami  the  government  without  sui)|)ort.  There  could  be  no  cure  for 
this  great  evil  but  to  enable  the  national  laws  to  operate  on  indi- 
viduals like  the  laws  of  the  states.  To  take  the  old  Confedera- 
tion as  the  basis  of  a new  system,  and  to  trust  the  sword  and  the 
purse  to  a single  assembly  organized  upon  principles  so  defective, 
giving  it  the  full  powers  of  taxation  and  the  national  forces,  would 
be  to  establish  a despotism.  These  considerations  showed  clearly 
that  a totally  different  government,  with  proper  powers  and  proper 
checks  and  balances,  must  be  established. 

The  convention  soon  afterwards  passed  to  an  animated  discus- 
sion on  the  system  of  representation  proposed  in  the  Constitution, 
and  while  an  amendment  relating  to  the  Senate  was  pending,  on 
the  2Tth  of  June,  Hamilton  received  intelligence  from  the  East 
that  on  the  21st  the  convention  of  Hew  Hampshire  had  ratified 
the  Constitution.  Up  to  this  moment  the  opposition,  while  dis- 
claiming earnestly  all  wish  to  bring  about  a dissolution  of  the 
Union,  or  to  prevent  the  establishment  of  some  firm  and  efficient 
government,  had  still  continued,  in  every  form,  to  press  a line  of 
argument  which  tended  to  produce  the  rejection  of  the  Consti- 
tution proposed ; and  it  was  evident  that  their  opponents  could 
throw  upon  them  the  responsibility  of  a dissolution  of  the  Union 
only  by  a deduction  from  the  tendency  of  their  reasoning.  But 
now  that  the  Constitution  had  been  adopted  by  the  number  of 
states  which  its  provisions  required  for  its  establishment,  the  Fed- 
eralists determined  that  the  opposition  should  publicly  meet  the 
issue  raised  by  the  new  aspect  of  affairs,  which  was  to  determine 
whether  the  state  of  Hew  York  should  or  should  not  place  itself 
out  of  the  pale  of  the  new  confederacy,  whether  it  should  or 
should  not  stand  in  a hostile  attitude  towards  the  nine  states 
which  had  thus  signified  their  determination  to  institute  a new 
government.  Accordingly,  on  the  next  day.  Chancellor  Living- 
ston formally  announced  in  the  convention  the  intelligence  that 
had  been  received  from  Hew  Hampshire,  which,  he  said,  had  evi- 
dentl^r  changed  the  circumstances  of  the  country  and  the  ground 
of  the  present  debate.  He  declared  that  the  Confederation  was 
now  dissolved.  Would  they  consider  the  situation  of  their  coun- 
try ? However  some  might  contemplate  disunion  without  pain, 
or  flatter  themselves  that  some  of  the  Southern  States  would  form 
a league  with  them,  he  could  not  look  without  horror  at  the  dan- 


078  CONSTITUTIONAL  HISTORY. 

gers  to  whicli  any  such  confederacy  would  expose  the  state  of 
New  York. 

Tins  dilemma  embarrassed,  but  did  not  subdue,  the  opposition. 
They  reiterated  their  denial  of  a purpose  to  produce  a dissolution 
of  the  Union,  doubtless  with  entire  sincerity  ; but  they  continued 
the  argument  which  Avas  designed  to  show  that  the  state  ought 
not  to  adopt  a system  dangerous  to  liberty,  under  a fear  of  the 
situation  in  which  it  might  be  placed. 

Here,  then,  the  reader  should  pause  for  a moment,  in  order  to 
form  a just  appreciation  of  the  course  pursued  by  Hamilton,  in 
this  altered  aspect  of  affairs,  wlien  nothing  remained  to  be  done 
but  to  get  the  state  of  New  T ork,  if  possible,  into  the  new  Union. 
We  have  now  the  means  of  knowing  precisely  how  he  estimated 
the  chances  of  succeeding  in  this  effort.  On  the  2 Yth,  while  the 
discussion  was  still  going  on,  he  Avrote  to  Madison  as  folloAvs  : 
There  are  some  slight  symptoms  of  relaxation  in  some  of  the 
leaders,  AA^hich  authorizes  a gleam  of  hope,  if  you  do  well;  but  cer- 
tainly I think  not  otherAvise.”  ' At  the  same  time,  AA^e  knoAv  that 
his  latest  neAvs  from  Yirginia  Avas  not  encouraging.^ 

Hoav  easy,  then,  perhaps  natural,  it  Avould  ha\^e  been  for  him 
to  have  abandoned  this  gleam  of  hope”— to  have  turned  his  back 
upon  the  state  and  all  its  cabals — to  have  left  the  Anti-I  ederalists 
to  determine  the  fate  of  Noaa"^  1l  ork,  and  to  have  transferred  him- 
self to  Avhat  Avas  then  the  larger  community,  the  great  state  of 
Pennsylvania,  or  to  any  of  the  other  states  which  had  adopted 
the  Constitutiofi ! He  must  have  been  received  anywhere  Avith 
the  consideration  due  to  his  high  reputation,  his  abilities,  his  pub- 
lic services,  and  his  acknowledged  patriotism.  He  must  have  been 
regarded,  in  any  state  that  had  accepted  the  new  government,  as 
a person  Avhose  assistance  Avas  indispensable  to  its  success ; and  so 
he  would  haA^e  been  looked  upon  by  tlie  main  body  of  the  people 
throughout  the  new  confederacy.  He  had  no  ties  of  office  to  bind 
him  to  the  state  of  New  York.  He  held  one  of  her  seats  in  the 
Congress  of  the  Confederation,  but  that  AAms  a body  Avhich  must 
soon  cease  to  exist.  His  political  opponents  had  an  undoubted 
majority  in  the  state.  The  social  ties  Avhich  had  bound  him  to 
her  soil  could  have  been  severed.  He  could  have  left  her,  there- 


1 AVorks,  I.  4G2. 

2 See  the  latest  letter  which  he  had  then  received  from  Madison.  I!)id.,4Gl. 


HAMILTON’S  EXERTIONS. 


G79 


fore,  to  the  counsels  of  liis  adversaries,  and  could  have  sought  and 
found  for  liiinself  a career  of  ambition  in  the  new  sj)here  that  was 
open  to  receive  him.  That  career  would  have  tempted  men  of  an 
inferior  mould,  and  would  have  seen  them  yield  to  the  temptation 
perhaps  the  more  readily,  because  the  conflicts  that  would  have 
been  inevitai)le  between  rival  confederacies  would  have  presented 
fresh  fields  for  exertion  and  personal  energy,  new  excitements  and 
new  adventures.  It  is,  too,  a mournfully  interesting  reflection, 
that  if  Hamilton  had  then  cut  himself  free  from  the  entanglements 
of  the  local  politics  of  Xew  York  by  a change  of  residence,  he 
])robably  could  never  have  been  drawn  into  that  miserable  quarrel 
with  the  wretch  who  in  after-years  planned  his  destruction,  and 
who  gained  by  it  the  execrable  distinction  of  having  taken  the 
most  important  life  that  has  ever  fallen  by  the  assassination  of 
the  duel  since  its  opportunities  for  murder  have  been  known  among 
men. 

But  with  whatever  melancholy  interest  we  may  pursue  such  a 
suggestion  of  what  Hamilton  might  have  done,  it  needs  but  to  be 
made  in  order  to  show  how  far  he  stood  above  the  reach  of  such 
a temptation.  From  his  first  entrance,  in  boyhood,  into  public 
life,  his  patriotism  had  comprehended  nothing  less  than  the  whole 
of  the  United  States.  Whatever  may  be  thought  of  his  policy, 
either  before  or  after  the  Constitution  was  established,  no  just  man 
will  deny  its  comprehensive  nationality.  He  now  saw  that  no 
partial  confederacy  of  the  states  could  be  of  any  permanent  value. 
He  had  no  favorite  theories  involved  in  the  Constitution,  no  peculiar 
experiments  that  he  wished  to  try.  He  embraced  it,  because  he 
believed  in  its  capacity  to  unite  the  whole  of  the  states,  to  concen- 
trate and  harmonize  their  interests,  and  to  accomplish  national 
objects  of  the  utmost  importance  to  their  welfare.  It  could,  with- 
out doubt,  be  inaugurated  and  put  into  operation  without  the  con- 
currence of  ISiew  York.  But  to  leave  that,  or  any  other  state  near 
the  geographical  centre  of  the  Union,  out  of  the  confederacy, 
would  be  to  leave  its  sovereignty  and  rights  exposed  to  perpetual 
collision  Avith  the  neAV  gOA^ernment.  IS^o  public  or  private  purpose 
could  haA^e  induced  Hamilton  to  abandon  any  effort  that  might 
prevent  such  a result.  He  still  labored,  therefore,  Avith  those  Avho 
Avere  associated  Avith  him,  to  procure  an  adoption  of  the  Constitu- 
tion by  the  state  of  New  York;  and  Ave  must  bear  in  mind  the 


680 


CONSTITUTIONAL  HISTORY. 


vast  importance  of  her  action,  and  the  difficulties  with  which  he 
had  to  contend,  that  we  may  take  a just  view  of  the  concessions 
to  the  opposition  which  he  seems  at  one  stage  of  the  crisis  to  have 
been  obliged  to  consider. 

But  we  must  now  leave  him  in  the  midst  of  the  embarrass- 
ments by  which  he  was  surrounded,  to  follow  his  messenger,  whom 
he  instantly  despatched,  on  the  24:th,  with  letters  to  Madison  at 
Eichmond,  announcing  the  news  of  the  ratification  by  Kew  Hamp- 
shire. The  courier  passed  through  the  city  of  New  York  on  the 
25th,  and  reached  Philadelphia  on  the  26th.  The  newspapers  of 
the  latter  city  immediately  cried  out,  “ The  reign  of  anarchy  is 
over,’'  and  the  popular  enthusiasm  rose  to  the  highest  point.  The 
courier  passed  on  to  the  South;  but  the  convention  of  Virginia 
had,  in  fact,  ratified  the  Constitution  before  he  arrived  in  Phila- 
delphia. Thus,  while  New  Hampshire,  in  the  actual  order  of 
events,  was  the  ninth  state  to  adopt  the  Constitution,  yet  Virginia 
herself,  so  far  as  the  members  of  her  convention  were  informed, 
appeared  at  the  time  of  their  voting  to  be  the  ninth  adopting 
state.  It  is  certain  that  they  acted  without  any  real  knowledge 
of  what  had  taken  place  in  New  Hampshire,  although  there  may 
have  been  random  assertions  of  what  nobody  at  Eichmond  could 
then  have  known.' 

The  result  was  brought  about  in  Virginia  by  the  force  of  ar- 
e-ument,  and  because  the  friends  of  the  Constitution  were  at  last 
able  to  reduce  the  issue  to  the  single  question  of  previous  or  sub- 
sequent, that  is,  of  conditional  or  recommendatory,  amendments. 
As  the  state  appeared  likely  to  be  the  ninth  state  to  act,  and  they 

1 It  lias  been  supposed  tliat  this  was  not  so,  but  that  Hamilton’s  messenger 
arrived  at  Richmond  before  the  final  action  of  the  Virginia  convention,  and  so 
that  the  decision  of  New  Hampshire  had  an  important  influence.  I think  this 
is  clearly  a mistake.  I have  traced  the  progress  of  the  messenger  in  the  news- 
papers of  that  time,  and  And  his  arrival  at  New  York  and  Philadelphia  chroni- 
cled as  it  is  given  in  the  text.  The  dates  are  therefore  decisive.  It  appears  also 
from  Mr.  Madison’s  correspondence  with  Hamilton  that  he  did  not  receive  tiio 
despatch  about  New  Hampshire  until  the  31st.  (Hamilton’s  Works,  I.  4G3.) 
The  ratification  passed  the  Virginia  convention  on  the  25th,  and  that  body  wns 
dissolved  on  the  27th.  There  is  no  trace  in  the  Virginia  debates  of  any  authentic 
news  from  New  Hampshire.  On  the  contrary,  it  was  assumed  by  one  of  the 
speakers,  Mr.  Innes,  on  the  day  of  their  ratification,  that  the  Constitution  then 
stood  adopted  by  eight  states.  (Elliot,  HI.  030.) 


THE  CONSTITUTION  IN  VIRGINIA. 


081 


could  insist  that,  if  she  rejected  the  Constitution,  slie  must  l>ear 
the  responsibility  of  defeating-  the  establishment  of  tlie  new  gov- 
ernment— a consequence  wliich  they  could  reasonably  predict — 
they  had  a high  vantage-ground  from  which  to  address  the  reason 
and  patriotism  of  the  assembly. 

Henry  and  the  other  leaders  of  the  opposition  fought  valiantly 
to  the  last.  When  the  whole  subject  had  been  exhausted,  the 
friends  of  the  Constitution  presented  the  propositions  on  which 
they  were  willing  to  rest  the  action  of  the  state,  and  which  de- 
clared, in  substance,  that  the  powers  granted  under  the  proposed 
Constitution  are  the  gift  of  the  people,  and  that  every  power  not 
granted  thereby  remains  with  them,  and  at  their  will ; consequently 
that  no  right  can  be  abridged,  restrained,  or  modified  by  the  gen- 
eral government  or  any  of  its  departments,  except  in  those  in- 
stances in  which  power  is  given  by  the  Constitution  for  those  pur- 
poses ; and  that,  among  other  essential  rights,  liberty  of  conscience 
and  of  the  press  cannot  be  cancelled,  abridged,  restrained,  or  modi- 
fied by  any  authority  of  the  United  States ; that  the  Constitution 
ought,  therefore,  to  be  ratified,  but  that  whatsoever  amendments 
might  be  deemed  necessary  ought  to  be  recommended  to  the  con- 
sideration of  the  first  Congress  that  should  assemble  under  the 
Constitution,  to  be  acted  upon  according  to  the  mode  prescribed 
therein. 

Mr.  Henry,  on  the  other  hand,  brought  forward  a counter  proj- 
ect, by  which  he  proposed  to  declare  that,  previous  to  the  ratifi- 
cation of  the  Constitution,  a Declaration  of  Eights,  asserting  and 
securing  from  encroachment  the  great  principles  of  civil  and  re- 
ligious liberty,  and  the  inalienable  rights  of  the  people,  together 
with  amendments  to  the  most  exceptionable  parts  of  the  Consti- 
tution, ought  to  be  referred  by  the  convention  of  Virginia  to  the 
other  states  in  the  American  confederacy  for  their  consideration. 

The  issue  was  thus  distinctly  made  between  previous  or  con- 
ditional and  subsequent  or  unconditional  amendments,  and  made 
in  a form  most  favorable  to  the  friends  of  the  Constitution ; for 
it  enabled  them  to  present  so  vigorously  and  vividly  the  conse- 
quences of  suspending  the  inauguration  of  the  new  government 
until  the  other  states  could  consider  the  amendments  desired  by 
Virginia,  that  they  procured  a rejection  of  Mr.  Henry’s  resolution 
by  a majority  of  eight,  and  a ratification  of  the  Constitution  by  a 


682 


CONSTITUTIONAL  HISTORY. 


majority  of  ten  votes.  A long  list  of  amendments,  together  with 
a bill  of  rights,  was  then  adopted,  to  be  presented  to  Congress 
for  its  consideration.' 

The  conduct  of  Mr.  Henry,  when  he  saw  that  the  adoption  of 
the  Constitution  was  inevitable,  was  all  that  might  have  been  ex- 
pected from  his  patriotic  and  unselfish  character.  If  I shall  be 
in  the  minority,”  he  said,  ‘‘  I shall  have  those  painful  sensations 
Avhich  arise  from  a conviction  of  being  overpowered  in  a good 
cause.  Yet  I will  be  a peaceable  citizen.  My  head,  my  hand, 
and  my  heart  shall  be  free  to  retrieve  the  loss  of  liberty,  and  re- 
move the  defects  of  this  system  in  a constitutional  way.  I wish 
not  to  go  to  violence,  but  will  wait  with  hopes  that  the  spirit 
which  predominated  in  the  Revolution  is  not  yet  gone,  nor  the 
cause  of  those  who  are  attached  to  the  Revolution  yet  lost.  I 
shall,  therefore,  patiently  wait  in  expectation  of  seeing  this  gov- 
ernment so  changed  as  to  be  compatible  with  the  safety,  liberty, 
and  happiness  of  the  people.”  This  noble  and  disinterested  pa- 
triot lived  to  find  the  Constitution  all  that  he  wished  it  to  be,  and 
to  enroll  himself,  in  the  day  of  its  first  serious  trial,  among  its 
most  vigorous  and  earnest  defenders. 

But  some  of  the  members  of  the  opposition  were  not  so  dis- 
creet. Immediately  after  the  adjournment  of  the  convention 
they  prepared  an  address  to  the  people,  intended  to  produce  an 
effort  .to  prevent  the  inauguration  of  the  new  government  by  a 
combined  arrangement  among  the  legislatures  of  the  several  states. 
But  this  paper,  which  never  saw  the  light,  was  rejected  by  their 
own  party,  and  the  opposition  in  Virginia  subsided  into  a general 
acquiescence  in  the  action  of  the  convention." 


' The  form  of  ratification  embraced  the  recitals  given  in  tlie  text  respecting 
the  powers  of  Congress.  It  was  adopted  b}"  a vote  of  89  to  79,  on  the  25th  of 
June  1788.  I do  not  go  into  the  particular  consideration  of  the  amendments 
proposed  by  several  of  the  state  conventions,  because  the  present  volume  is  con- 
fined to  the  origin,  tlie  formation,  and  the  adoption  of  the  Constitution,  and  no 
state  that  ratified  the  instrument  proposed  by  the  national  Convention  made 
amendments  a condition.  The  examination  of  the  amendments  proposed,  there- 
fore, belongs  to  the  history  of  the  Constitution  subsec^ucnt  to  its  inauguiation. 
They  may  all  be  found  in  the  second  volume  of  the  present  history. 

2 Debates  in  Virginia  Convention,  Elliot,  III.  652. 

3 Madison’s  letters  to  Hamilton,  Works  of  Hamilton,  I.  462,  463. 


KE.IOICINGS  IN  PHILADELPHIA. 


683 


The  ratification  of  Virginia  took  jilaco  on  the  25th  of  June; 
the  news  of  this  event  was  received  and  published  in  riiiladelphia 
on  the  2d  of  July.  The  press  of  the  city  was  at  once  filled  with 
rejoicings  over  the  action  of  Virginia.  She  was  the  tenth  pillar 
of  the  temple  of  liberty.  She  Avas  Virginia — eldest  and  foremost 
of  the  states — land  of  statesmen  whose  Revolutionary  services 
were  as  household  words  in  all  America — birthplace  and  home  of 
Washington!  We  need  not  Avonder,  Avhen  she  had  come  so  tar- 
dily, so  cautiously,  into  the  support  of  the  Constitution,  that  men 
should  have  hailed  her  accession  Avith  enthusiasm.  The  people  of 
J^hiladelphia  had  been  for  some  time  preparing  a public  demon- 
stration, in  honor  of  the  adoption  of  the  Constitution  by  nine 
states.  I^OAv  that  Virginia  Avas  added  to  the  number,  they  deter- 
mined that  all  possible  magnificence  and  splendor  should  be  given 
to  this  celebration,  and  they  chose  for  it  the  anniversary  day  of 
the  R’ational  Independence. 

A taste  for  allegory  appears  to  have  been  quite  prevalent 
among  the  people  of  the  United  States  at  this  period.  Accord- 
ingly the  Philadelphia  procession  of  July  4,  1788,  Avas  filled  with 
elaborate  and  emblematic  representations.  It  Avas  a long  pageant 
of  banners,  of  trades,  and  devices.  A decorated  car  bore  the  Con- 
stitution framed  as  a banner  and  hung  upon  a staff.  Then  an- 
other decorated  car  carried  the  American  flag  and  the  flags  of  all 
friendly  nations.  Then  folloAA^ed  the  judges  in  their  robes,  and 
all  the  public  bodies,  preceding  a grand  federal  edifice,  which  was 
carried  on  a carriage  draAvn  by  ten  horses.  On  the  door  of  this 
edifice  Avere  seated,  in  chairs,  ten  gentlemen,  representing  the  citi- 
zens of  the  United  States  at  large,  to  Avhom  the  Federal  Constitu- 
tion had  been  committed  before  its  ratidcation.  When  it  arrived 
at  “Union  Green  ” they  gave  up  their  seats  to  ten  others  repre- 
senting the  ten  states  Avhich  had  ratided  the  instrument.  The 
federal  ship.  The  TJnion^  came  next,  folloAved  by  all  the  trades, 
plying  their  A^arious  crafts  upon  elevated  platforms,  Avith  their 
several  emblems  and  mottoes,  strongly  expressing  conddence  in 
the  protection  that  Avould  be  afforded  under  the  Constitution  to 
all  the  forms  of  American  manufactures  and  mechanic  arts.  Ten 
vessels  paraded  on  the  DelaAvare,  each  Avith  a broad  Avhite  dag  at 
its  masthead,  bearing  the  name  of  one  of  the  ten  states  in  gold 
letters ; and,  as  if  to  combine  the  ideas  both  of  the  absence  and 


684 


CONSTITUTIONAL  HISTORY. 


the  presence  of  the  ten  states,  ten  carrier-pigeons  were  let  off  from 
the  printers’  platform,  each  with  a small  package  bearing  ‘Hhe 
ode  of  the  day”  to  one  of  the  ten  rejoicing  and  sympathizing 
states. 

Thus  did  ingenuity  and  mechanical  skill  exert  themselves  in 
quaint  devices  and  exhibitions,  to  portray,  to  personify,  and  to 
celebrate  the  vast  social  consequences  of  an  event  w^hich  had  then 
no  parallel  in  the  history  of  any  other  country — the  free  and  vol- 
untary adoption  by  the  people  of  a written  constitution  of  gov- 
ernment framed  by  the  agents  and  representatives  of  the  people 
themselves.  The  carrier-birds  are  not  known  to  have  literally 
performed  their  tasks,  but  as  rapidly  as  horse  and  man  could 
carry  it,  the  news’  from  Virginia  pressed  on  to  the  North,  and 
reached  Hamilton  at  Poughkeepsie  on  the  8th  of  July. 

It  found  him  still  surrounded  by  the  same  difficulties  that  ex- 
isted when  he  received  the  result  of  the  Convention  of  New 
Hampshire.  The  opposition  had  relaxed  none  of  their  efforts  to 
prevent  the  adoption  of  the  Constitution ; they  had  only  become 
somewhat  divided  respecting  the  method  to  be  pursued  for  its  de- 
feat. Some  of  them  were  in  favor  of  conditions  precedent,  or^ 
previous  amendments  ; some,  of  conditions  subsequent,  or  the  pro- 
posal of  amendments  upon  the  condition  that,  if  they  should  not 
be  adopted  within  a certain  time,  the  state  should  be  at  liberty  to 
withdraw  from  the  Union;  and  all  of  them  were  determined,  in 
case  the  Constitution  should  be  ratified,  to  carry  constructive  dec- 
larations of  its  meaning  and  powers  as  far  as  possible.  Hamilton 
was  conscious  that  the  chief  danger  to  which  the  Constitution  it- 
self was  now  exposed  was  that  a general  concurrence  in  injudi- 
cious recommendations  might  seriously  Avound  its  power  of  taxa- 
tion, by  causing  a recurrence,  in  some  shape,  to  the  system  of 
requisitions.  The  danger  to  which  the  state  of  IseAv  Tork  was 
exposed  was  that  it  might  not  become  a member  of  the  new 
Union  in  any  form. 

The  leading  Federalists  who  were  united  with  Hamilton  in  the 
effort  to  prevent  such  a disastrous  issue  of  this  convention  were 
John  Jay,  the  chancellor,  Kobert  K.  Livingston,  and  James  Duane. 
A few  days  after  the  intelligence  from  New  Hampshire  was  re- 
ceived, these  gentlemen  held  a consultation  as  to  the  most  effectual 
method  of  encountering  the  objections  made  to  the  general  power 


THE  RESULT  IN  NEW  YORK. 


C85 


of  taxation  that  would  bo  conferrod  by  tlie  Constitution  upon  the 
^reneral  government.  The  legislative  history  of  the  state  from 
1780  to  1782  embraced  a series  of  official  acts  and  documents 
showing  that  the  state  had  been  compelled  to  sustain  a very  large 
share  of  the  burden  of  the  Eevolutionary  war;  that  requisitions 
had  been  unable  to  call  forth  the  resources  of  the  country ; and 
that,  in  the  judgment  of  the  state,  officially  and  solemnly  declared 
in  1782,  and  concurred  in  by  those  who  now  resisted  the  estab- 
lishment of  the  Constitution,  it  was  necessary  that  the  Union 
should  possess  other  sources  of  revenue.  The  Federalists  now 
resolved  that  these  documents  be  formally  laid  before  the  conven- 
tion, and  Hamilton  undertook  to  bring  them  forward. 

On  the  27th  of  June  he  commenced  the  most  elaborate  and 
important  of  the  speeches  which  he  made  in  this  assembly,  for 
the  purpose  of  showing  that  in  the  construction  of  a government 
the  great  objects  to  be  attained  are  a free  and  pure  representation, 
and  a proper  balance  between  the  different  branches  of  adminis- 
tration ; and  that  when  these  are  obtained,  all  the  powers  neces- 
sary to  answer,  in  the  most  ample  manner,  the  purposes  of  gov- 
ernment, may  be  bestowed  with  entire  safety.  He  proceeded  to 
argue,  not  only  that  a general  power  of  taxation  was  essential, 
but  that,  under  a system  so  complex  as  that  of  the  Constitution— 
so  skilfully  endowed  with  the  requisite  forms  of  representation 
and  division  of  executive  and  legislative  power— it  was  next  to 
impossible  that  this  authority  should  be  abused.  In  the  course  of 
this  speech,  and  for  the  purpose  of  showing  that  the  state  had 
suffered  great  distresses  during  the  war  from  the  mode  of  raising 
revenues  by  requisitions,  he  called  for  the  reading  at  the  clerk’s 
table  of  a series  of  documents  exhibiting  this  fact.  Governor 
Clinton  resisted  their  introduction,  but  they  were  read ; and  Ham- 
ilton and  his  friends  then  contended  that  they  proved  beyond  dis- 
pute that  the  state  had  once  been  in  great  peril  for  want  of  an 
energetic  general  government. 

This  movement  produced  a warm  altercation  between  the  lead- 
ing gentlemen  on  the  opposite  sides  of  the  house.  But  while  it 
threw  a grave  responsibility  upon  the  opposition,  it  did  not  con- 
quer them  ; and  by  the  day  on  which  the  intelligence  from  Yir- 
ginia  arrived,  they  had  heaped  amendments  upon  the  table  on 
alniost  every  clause  and  feature  of  the  Constitution,  some  one  or 


686 


CONSTITUTIONAL  HISTORY. 


more  of  which  it  was  highly  probable  they  would  succeed  in  mak- 
ing a condition  of  its  acceptance. 

This  critical  situation  of  affairs  led  Hamilton  to  consider,  for  a 
short  time,  whether  it  might  not  be  necessary  to  accede  to  a plan 
by  which  the  state  should  reserve  the  right  to  recede  from  the 
Union,  in  case  its  amendments  should  not  have  been  decided  upon, 
in  one  of  the  modes  pointed  out  by  the  Constitution,  within  five 
or  six  years.  He  saw  the  objections  to  this  course ; and  he  was 
determined  to  leave  no  effort  untried  to  bring  the  opposition  to 
an  unqualified  ratification.  But  the  danger  of  a rejection  of  the 
Constitution  was  extreme;  and  as  a choice  of  evils  he  thought 
that,  if  the  state  could  in  the  first  instance  be  received  into  the 
Union  under  such  a reserved  right  to  withdraw,  succeeding 
events,  by  the  adoption  of  all  proper  and  necessary  amendments, 
would  make  the  reservation  unimportant,  because  such  amend- 
ments would  satisfy  the  more  reasonable  part  of  the  opposition, 
and  would  thus  break  up  their  party.  But  he  determined  not  to 
incur  the  hazard  of  this  step  upon  his  own  judgment  alone,  or  that 
of  any  one  else  having  a personal  interest  in  the  question ; and 
accordingly,  on  the  12th  of  July,  he  despatched  a letter  to  Madi- 
son, who  was  then  attending  in  Congress  at  the  city  of  Hew 
York,  asking  his  opinion  upon  the  possibility  of  receiving  the 
state  into  the  Union  in  this  form.’ 

Madison  instantly  replied  that,  in  his  opinion,  this  would  be  a 
conditional  ratification,  and  would  not  make  the  state  of  Hew 
York  a member  of  the  new  Union  ; that  the  Constitution  required 
an  adoption  in  toto  and  forever ; and  that  any  condition  must  viti- 
ate the  ratification  of  any  state.“ 

Before  this  reply  could  have  been  received  at  Poughkeepsie, 
the  Federalists  had  introduced  their  proposition  for  an  uncondi- 
tional ratification,  and  this  was  followed  by  that  of  the  Anti- 
Federalists  for  a conditional  one.  The  former  Avas  rejected  by 
the  Convention  on  the  16th  of  July.  The  opposition  then  brought 
forward  a. new  form  of  conditional  ratification,  Avith  a bill  of 
rights  prefixed,  and  with  amendments  subjoined.  After  a long 
debate  the  Federalists  succeeded,  on  the  23d  of  July,  in  procuring 
a A^ote  to  change  this  proposition,  so  that,  in  place  of  the  AA^ords 

' Letter  to  Madison,  Works  of  Hamilton,  I.  464.  * Ibid.,  465. 


CIRCULAR  LETTER  OF  NEW  YORK. 


087 


on  condition,”  the  people  of  the  state  would  be  made  to  declare 
that  they  assented  to  and  ratified  the  Constitution  “ in  full  confi- 
dence ” that,  until  a general  convention  should  be  called  for  pro- 
posing amendments.  Congress  would  not  exercise  certain  powers 
which  the  Constitution  conferred  upon  them.  This  alteration 
was  carried  by  thirty-one  votes  against  twenty-seven.  A list  of 
amendments  was  then  agreed  upon,  and  a circular  letter  was 
adopted,  to  be  sent  to  all  the  states,  recommending  a general  con- 
vention; and  on  Saturday,  the  26th  of  July,  the  ratification,  as 
thus  framed,  with  the  bill  of  rights  and  the  amendments,  was 
carried  by  thirty  affirmative  against  twenty-seven  negative  votes.' 

By  this  slender  majority  of  her  delegates,  and  under  circum- 
stances of  extreme  peril  of  an  opposite  decision,  did  the  state  of 
New  York  accept  the  Constitution  of  the  United  States,  and  be- 
come a member  of  the  new  government.  The  facts  of  the  case, 
and  the  importance  of  her  being  brought  into  the  new  Union, 
afford  a sufficient  vindication  of  the  course  pursued  by  the  Feder- 
alists in  her  convention.  But  it  is  necessary,  before  closing  the 
history  of  these  events,  to  consider  a complaint  that  was  made  at 
the  time  by  some  of  the  most  zealous  of  their  political  associates 
in  other  quarters,  and  which  touched  the  correctness  of  their  mo- 
tives in  assenting  to  the  circular  letter  demanding  a general  con- 
vention for  the  amendment  of  the  Constitution. 

That  there  was  danger  lest  another  general  convention  might 
result  in  serious  injury  to  the  Constitution,  perhaps  in  its  over- 
throw, was  a point  on  which  there  was  probably  no  difference  of 
opinion  among  the  Federalists  of  that  day.  Washington  regarded 
it  in  this  light ; and  there  is  no  reason  to  doubt  that  Hamilton 
and  Jatq  and  many  others  of  the  friends  of  the  Constitution,  would 
have  felt  great  anxiety  about  its  result.  But  there  were  some 
members  of  the  Federal  party,  in  several  of  the  states,  who  do 
not  seem  to  have  fully  appreciated  the  importance  of  conceding 
to  the  opposition,  at  the  time  of  the  adoption  of  the  Constitution, 

* It  was  reported  in  the  newspapers  of  that  period  that  the  Constitution  was 
adopted  in  this  Convention  by  30  yeas  against  25  nays.  But  the  official  record 
gives  the  several  votes  as  they  are  stated  in  the  text;  from  wliich  it  appears 
that,  on  the  critical  question  of  a conditional  or  unconditional  ratification,  the 
majority  was  only  2.  In  truth,  the  ratification  of  New  York  barely  escapes  the 
objection  of  being  a qualified  one,  if  it  does  in  fact  escape  it. 


088 


CONSTITUTIONAL  HISTORY. 


the  use  of  any  and  every  form  of  obtaining  amendments  which 
the  Constitution  itself  recognized.  This  was  true  everywhere, 
wliere  serious  dissatisfaction  existed,  and  it  was  especially  true  in 
the  state  of  New  York.  It  was  impossible  to  procure  a ratifica- 
tion in  that  state  without  an  equivalent  concession  ; and  if  the 
Federal  leaders  in  that  convention  assented  to  the  proposal  of  a 
course  of  amending  the  Constitution  for  which  the  instrument 
itself  provided,  however  ineligible  it  might  be,  their  justification 
is  to  be  found  in  the  circumstances  of  their  situation.  Washington 
himself,  when  all  was  over,  wrote  to  Mr.  Jay  as  follows:  “Al- 
though I could  scarcely  conceive  it  possible,  after  ten  states  had 
adopted  the  Constitution,  that  New  York,  separated  as  it  is  from 
the  others,  and  peculiarly  divided  in  sentiments  as  it  is,  would 
withdraw  from  the  Union,  yet,  considering  the  great  majority 
which  appeared  to  cling  together  in  the  convention,  and  the  de- 
cided temper  of  the  leaders,  I did  not,  I confess,  see  how  it  was 
to  be  avoided.  The  exertion  of  those  who  were  able  to  effect  this 
great  work  must  have  been  equally  arduous  and  meritorious.”  ‘ 

But  others  were  not  so  just.  The  Federalists  of  the  New  York 
convention  were  complained  of  by  some  of  their  friends  for  hav- 
ing assented  to  the  circular  letter  for  the  purpose  of  procuring  a 
ratification  at  any  price,  in  order  to  secure  the  establishment  of 
the  new  government  at  the  city  of  New  York.  It  was  said  that 
the  state  had  better  have  remained  out  of  the  Union  than  to  have 
taken  a course  which  would  prove  more  injurious  than  her  rejec- 
tion would  have  done.^ 

With  respect  to  these  complaints  and  the  accompanying  charge 
it  is  only  necessary  to  say,  in  the  first  place,  that  Hamilton  and 
Jay  and  their  associates  believed  that  there  was  far  less  danger 
to  be  apprehended  from  a mere  call  for  a second  general  conven- 
tion than  from  a rejection  of  the  Constitution  by  the  state  of 
New  York ; and  they  had  to  choose  between  these  alternatives. 
The  result  shows  that  they  chose  rightly ; for  the  assembling  of  a 
general  convention  was  superseded  by  the  action  of  Congress  upon 
the  amendments  proposed  by  the  states.  In  the  second  place,  the 


’ Works  of  Washington,  IX.  408. 

2 Madison’s  letter  to  Washington,  August  24tli,  1788,  Works  of  Washington, 
IX.  549. 


HONORS  PAID  TO  HAMILTON. 


089 


alleged  motive  did  not  exist.  We  now  know  that  Hamilton  cer- 
tainly, and  we  may  presume  his  friends  also,  did  not  expect  or 
desire  the  new  government  to  be  more  than  tem])orarily  ])laced 
at  the  city  of  New  York,  lie  himself  saw  the  impolicy  of  estab- 
lishing it  ])ermanently  either  at  that  place  or  at  Philadelphia.  He 
regarded  its  temporary  establishment  at  the  city  of  New  York  as 
the  certain  means  of  carrying  it  farther  south,  and  of  securing  its 
final  and  permanent  place  somewhere  upon  the  banks  of  the  Dela- 
ware within  the  limits  of  New  Jersey,  or  upon  the  banks  of  the 
Potomac  within  the  limits  of  Yirmnia.* 

O 

The  people  of  the  city  of  New  York  had  waited  long  for  the 
decision  of  their  state  convention.  They  had  postponed  several 
times  their  intended  celebration  in  honor  of  the  Constitution, 
which,  as  it  was  to  be  the  last,  they  determined  should  be  the 
most  imposing  of  these  ceremonies.  When  the  day  at  length 
came,  on  the  5th  of  August,  1788,  it  saw  a population  whose  mu- 
tual confidence  and  joy  had  absorbed  every  narrow  and  bigoted 
distinction  in  that  noblest  of  all  the  passions  that  a people  can 
exhibit — love  of  country.  It  were  a vain  and  invidious  task  to 
attempt  to  determine,  from  the  contemporary  descriptions,  whether 
this  display  exceeded  that  of  all  the  other  cities  in  variety  and  ex- 
tent. But  there  was  one  feature  of  it  so  striking,  so  creditable  to 
the  people  of  the  city  of  New  York,  that  it  should  not  be  passed 
over.  It  consisted  in  the  honors  they  paid  to  Hamilton. 

He  must  have  experienced  on  that  day  the  best  reward  that  a 
statesman  can  ever  find ; for  there  is  no  purer,  no  higher  pleasure 
for  a conscientious  statesman,  than  to  know,  by  demonstrations 
of  public  gratitude,  that  the  humblest  of  the  people  for  whose 
Avelfare  he  has  labored  appreciate  and  are  thankful  for  his  ser- 
vices. Public  life  is  often  represented,  and  often  found,  to  be  a 
thankless  sphere  for  men  of  the  greatest  capacity  and  the  highest 
patriotism ; and  the  accidents,  the  defeats,  the  changes,  the  party 
passions  and  obstructions  of  the  political  world,  in  a free  govern- 
ment, frequently  make  it  so.  But  mankind  are  neither  deliber- 
ately heartless  nor  systematically  unthankful ; and  it  has  some- 
times happened,  in  popular  governments,  that  statesmen  of  the 


^ See  his  letter  to  Governor  Livingston  of  New  Jersey,  August  29th,  1788 
Works,  I.  471. 

L— 44 


690 


CONSTITUTIONAL  HISTORY. 


first  order  of  mind  and  character  have,  while  living,  received  the 
most  unequivocal  proofs  of  feeling  directly  from  the  popular  heart, 
while  the  sum  total  of  their  lives  appears  in  history  to  be  wanting 
in  evidences  of  that  personal  success  which  is  attained  in  a constant 
triumph  over  opponents.  Such  an  expression  of  popular  gratitude 
and  sympathy  it  was  now  the  fortune  of  Hamilton  to  receive. 

The  people  of  the  city  did  not  stop  to  consider,  on  this  occa- 
sion, whether  he  was  entitled,  in  comparison  with  all  the  other 
public  men  in  the  United  States,  to  be  regarded  as  the  chief  author 
of  the  blessings  which  they  now  anticipated  from  the  Constitution. 
And  why  should  they  ? He  was  their  fellow-citizen— their  own. 
They  remembered  the  day  when  they  saw  him,  a mere  boy,  train- 
ing his  artillerymen  in  their  public  park  for  the  coming  battles 
of  the  Kevolution.  They  remembered  the  youthful  eloquence  and 
the  more  than  youthful  power  with  which  he  encountered  the 
pestilent  and  slavish  doctrines  of  their  tories.  They  thought  of 
his  career  in  the  army,  when  the  extraordinary  maturity,  depth, 
and  vigor  of  his  genius,  and  his  great  accomplishments,  supplied 
to  Washington,  in  some  of  the  most  trying  periods  of  his  vast 
and  prolonged  responsibility,  the  assistance  that  Washington  most 
needed.  They  recollected  his  career  in  Congress,  when  his  com- 
prehensive intellect  was  always  alert,  to  bear  the  country  forward 
to  measures  and  ideas  that  would  concentrate  its  powers  and 
resources  in  some  national  system.  They  called  to  mind  hoAv  he 
had  kept 'their  own  state  from  wandering  quite  away  into  the 
paths  of  disunion— how  he  had  enlightened,  invigorated,  and  puri- 
fied public  opinion  by  his  wise  and  energetic  counsels— how  he 
had  led  them  to  understand  the  true  happiness  and  glory  of  their 
country — how  he  had  labored  to  bring  about  those  events  which 
had  now  produced  the  Constitution— how  he  had  shown  to  them 
the  harmony  and  success  that  might  be  predicted  of  its  operation, 
and  had  taught  them  to  accept  what  was  good,  without  petulantly 
demanding  what  individual  opinion  might  claim  as  perfect. 

What  was  it  to  them,  therefore,  on  this  day  of  public  rejoicing, 
that  there  might  be  in  his  policy  more  of  consolidation  than  in  the 
policy  of  others — that  he  was  said  to  have  in  his  politics  too  much 
that  was  national  and  too  little  that  was  local  that  some  had 
done  as  much  as  he  in  the  actual  construction  of  the  system  Avliich 
they  were  now  to  celebrate  ? Such  controversies  might  be  for 


HONORS  PAID  TO  HAMILTON. 


091 


history,  or  for  the  contests  of  administration  that  were  soon  to 
arise.  On  this  day  they  were  driven  out  of  men’s  thoughts  by 
the  glow  of  that  public  enthusiasm  which  banishes  the  spirit  of 
party,  and  touches  and  opens  the  inmost  fountains  of  patriotism. 
Hamilton  had  rendered  a series  of  great  services  to  his  country, 
which  had  culminated  in  the  adoption  of  the  Constitution  by  the 
state  of  New  York ; and  they  were  now  acknowledged  from  the 
very  hearts  of  those  who  best  knew  his  motives  and  best  under- 
stood his  character. 

The  people  themselves,  divided  into  their  respective  trades,  evi- 
dently undertook  the  demonstrations  in  his  honor,  and  gave  them 
an  emphasis  which  they  could  have  derived  from  no  other  source. 
They  bore  his  image  aloft  upon  banners.  They  placed  the  Consti- 
tution in  his  right  hand,  and  the  Confederation  in  his  left.  They 
depicted  Fame,  with  her  trumpet,  crowning  him  with  laurels. 
They  emblazoned  his  name  upon  the  miniature  frigate,  the  federal 
ship  of  state.  They  anticipated  the  administration  of  the  first 
president,  by  uniting  on  the  national  flag  the  figure  of  Washington 
and  the  figure  of  Hamilton.'  All  that  ingenuity,  all  that  affec- 
tion, that  popular  pride  and  gratitude  could  do,  to  honor  a public 
benefactor,  was  repeated  again  and  again  through  the  long  line  of 
five  thousand  citizens,  of  all  orders  and  conditions,  which  stretched 
away  from  the  shores  of  that  beautiful  bay  where  ocean  ascends 
into  river  and  river  is  lost  in  ocean — where  Commerce  then  wore 
her  holiday  attire,  to  prefigure  the  magnificence  and  power  which 
^ she  was  to  derive  from  the  Constitution  of  the  United  States. 


* Some  of  the  most  elaborate  of  these  devices  were  borne  by  the  “ Block  and 
Pump  Makers”  and  the  “ Tallow-Chandlers.” 


CHAPTER  XXXYL 


Action  of  Xorth  Carolina  and  Rhode  Island. 

Thus  had  eleven  states,  at  the  end  of  Jnlj,  1788,  uncondition- 
ally adopted  the  Constitution ; five  of  them  proposing  amendments 
for  the  consideration  of  the  first  Congress  that  would  assemble 
under  it,  and  one  of  the  five  calling  for  a second  general  conven- 
tion to  act  upon  the  amendments  desired.  Two  other  states, 
however,  Xorth  Carolina  and  Rhode  Island,  still  remained  aloof. 

The  legislature  of  Xorth  Carolina,  in  December,  1787,  had 
ordered  a state  convention,  which  assembled  July  21,  1788,  five 
days  before  the  convention  of  Xew  York  ratified  the  Constitution. 
In  this  body  the  Anti-Federalists  obtained  a large  majority.  They 
permitted  the  whole  subject  to  be  debated  until  the  2d  of  August ; 
still  it  had  been  manifest  from  the  first  that  they  would  not  allow 
of  an  unconditional  ratification.  They  knew  what  had  been  the 
result  in  Xew  Hampshire  and  Virginia  ; but  the  decision  of  Xew 
York  had,  of  course,  not  reached  them.  Their  determination  was 
not,  however,  to  be  affected  by  the  certainty  that  the  new  govern- 
ment would  be  organized.  Their  purpose  was  not  to  enter  the 
new  Union  until  the  amendments  which  they  desired  had  been 
obtained.  They  assumed  that  the  Congress  of  the  Confederation 
would  not  provide  for  the  organization  of  the  new  government 
until  another  general  convention  had  been  held;  or,  if  they  did, 
that  such  a convention  would  be  called  by  the  new  Congress ; 
and  it  appeared  to  them  to  be  the  most  effectual  mode  of  bringing 
about  one  or  the  other  of  these  courses  to  remain  for  the  present 
in  an  independent  position.  The  inconvenience  and  hazard  attend- 
ing such  a position  do  not  seem  to  have  had  much  weight  with 
them,  when  compared  with  what  they  regarded  as  the  danger  of 
an  unconditional  assent  to  the  Constitution  as  it  then  stood. 

The  Federalists  contended  strenuously  for  the  course  pursued 
by  the  other  states  which  had  proposed  amendments,  but  they 


RHODE  ISLAND  OUT  OF  THE  NEW  UNION.  093 

were  overpowered  by  great  numbers,  and  the  convention  was  dis- 
solved, after  adopting  a resolution  declaring  that  a bill  of  rights, 
and  certain  amendments,  ought  to  be  laid  before  Congress  and  the 
convention  that  might  be  called  for  amending  the  Constitution, 
previous  to  its  ratification  by  the  state  of  North  Carolina.*  But 
in  order,  if  possible,  to  place  the  state  in  a position  to  accede  to 
the  Constitution  at  some  future  time,  and  to  participate  fully  in 
its  benefits,  they  also  declared  that,  having  thought  proper  neither 
to  ratify  nor  to  reject  it,  and  as  the  new  Congress  would  probably 
lay  an  impost  on  goods  imported  into  the  states  which  had  adopted 
it,  they  recommended  the  legislature  of  North  Carolina  to  lay  a 
similar  impost  on  goods  imported  into  the  state,  and  to  appropriate 
the  money  arising  from  it  to  the  use  of  Congress.^ 

The  elements  which  formed  the  opposition  to  the  Constitution 
in  other  states  received  in  Rhode  Island  an  intense  development 
and  aggravation  from  the  peculiar  spirit  of  the  people  and  from 
certain  local  causes,  the  history  of  which  has  never  been  fully 
written,  and  is  now  only  to  be  gathered  from  scattered  sources. 
Constitutional  government  was  exposed  to  great  perils  in  that 
day,  throughout  the  country,  in  consequence  of  the  false  notions 
of  state  sovereignty  and  of  public  liberty  Avhich  prevailed  every- 
where. But  it  seemed  as  if  all  these  causes  of  opposition  and  dis- 
trust had  centred  in  Rhode  Island,  and  had  there  found  a theatre 
on  which  to  exhibit  themselves  in  their  worst  form.  Fortunately 
this  theatre  was  so  small  and  peculiar  as  to  make  the  display  of 
these  ideas  extremely  conspicuous. 

The  colony  of  Rhode  Island  was  established  upon  the  broadest 
principles  of  religious  and  civil  freedom.  Its  earl}^  founders  and 
rulers,  flying  from  religious  persecution  in  the  other  New  England 
colonies,  had  transmitted  to  their  descendants  a natural  jealousy 
of  other  communities,  and  a high  spirit  of  individual  and  public 
independence.  In  the  progress  of  time,  as  not  infrequently  hap- 
pens in  such  communities,  the  principles  on  which  the  state  was 
founded  were  falsely  interpreted  and  applied,  until,  in  the  minds 
of  a large  part  of  the  people,  they  had  come  to  mean  a simple 


1 This  resolution  was  adopted  August  2d,  1788,  by  184  yeas  to  84  uays.  North 
Carolina  Debates,  Elliot,  IV.  250,  251, 

2 North  Carolina  Debates,  Elliot,  IV.  250,  251. 


CONSTITUTIONAL  HISTORY. 


69T 

aversion  to  all  but  the  most  democratic  form  of  government.  ]^o 
successful  appeal  to  this  hereditary  feeling  could  be  made  during 
the  early  part  of  the  Revolution,  against  the  interests  and  influence 
of  the  Confederacy,  because  the  early  and  local  effect  of  the  Revo- 
lution ill  fact  coincided  with  it.  But  when  the  Revolution  was 
fairly  accomplished,  and  the  state  had  assumed  its  position  of  ab- 
solute sovereignty,  what  may  be  called  the  extreme  individualism 
of  the  people,  and  their  old  unfortunate  relations  with  the  rest  of 
New  England,  made  them  singularly  reluctant  to  part  with  any 
power  to  the  confederated  states.  The  manifestations  of  this 
feeling  we  have  seen  all  along,  from  the  first  establishment  of 
the  Confederation  down  to  the  period  at  which  we  are  now  ar- 
rived. 

The  local  causes  which  gave  to  this  tendency  its  utmost  ac- 
tivity, at  the  time  of  the  formation  of  the  Constitution  of  the 
United  States,  were  the  following ; 

First,  there  had  existed  in  the  state,  for  a considerable  period, 
a despotic  and  well-organized  party,  known  as  the  paper-money 
party.  This  faction  had  long  controlled  the  legislation  of  the 
state  by  furnishing  the  agricultural  classes,  in  tlie  shape  of  paper 
money,  with  the  only  circulating  medium  they  had  ever  had  in 
any  large  quantity ; and  they  were  determined  to  extinguish  the 
debt  of  the  state  by  this  species  of  currency,  which  the  legislature 
could,  and  did,  depreciate  at  pleasure. 

Secondly,  there  existed,  to  a great  and  ludicrous  extent,  a con- 
stant antagonism  between  town  and  country — between  the  agri- 
cultural and  the  mercantile  or  trading  classes ; and  this  hostility 
was  especially  violent  and  active  between  the  people  of  the  towns 
of  Providence  and  Newport  and  the  people  of  the  surrounding 
and  the  more  remote  rural  districts.*  The  paper-money  question 
divided  the  inhabitants  of  the  state  in  tlie  same  way.  The  loss 
of  this  circulation  would  deprive  the  agricultural  classes  of  their 

* The  march  of  the  country  people  upon  Providence,  on  the  4th  of  July,  1788, 
and  the  manner  in  which  they  compelled  the  inliabitants  of  tlie  town  to  abandon 
their  purpose  of  celebrating  the  adoption  of  the  Constitution  by  nine  states — 
dictating  even  their  toasts  and  salutes  — reads  more  like  a page  in  Diedrich 
Knickerbocker's  History  of  New  York  than  like  anything  else.  But  it  is  a vera- 
cious as  well  as  a most  amusing  story.  See  Staples’s  Annals  of  Providence,  pp. 
329-335. 


SPIRIT  OF  THE  PEOPLE  OF  RHODE  ISLAND.  G95 

sole  ciirrency.  They  kei)t  their  paper-money  party,  therefore,  in 
a state  of  constant  activity  ; and  when  the  Constitution  of  the 
United  States  ai)i:»eared  this  was  an  organized  and  triumphant 
party,  ready  for  any  new  contest.  Finally,  there  prevailed  among 
the  country  party  a notion  that  the  maritime  advantages  of  the 
state  ought,  in  some  way,  to  be  made  use  of  for  obtaining  better 
terms  with  the  general  government  than  could  be  had  under  the 
Constitution,  and  that  by  some  such  means  funds  could  be  obtained 
for  paying  their  most  urgent  debts. 

If  we  may  judge  of  the  spirit  and  the  acts  of  the  majority  of 
the  people  of  Uhode  Island,  at  this  time,  by  the  manner  in  which 
they  were  looked  upon  throughout  the  rest  of  the  Union,  no  lan- 
guage of  censure  can  be  too  strong  to  be  applied  to  them.  They 
were  regarded  and  spoken  of  everywhere,  among  the  Federalists, 
with  contempt  and  abhorrence.  Even  the  opposition  in  other 
states,  in  all  their  arguments  against  the  Constitution,  never  vent- 
ured to  defend  the  people  of  Khode  Island.  Kidicule  and  scorn 
were  heaped  upon  them  from  all  quarters  of  the  country,  and  ar- 
dent zealots  of  the  Federal  press  urged  the  adoption  of  the  advice 
which  they  said  the  grand  seignior  had  given  to  the  king  of 
Spain  with  respect  to  the  refractory  states  of  Holland,  namely, 
to  send  his  men  with  shovels  and  pickaxes,  and  throw  them  all 
into  the  sea.  Such  an  undertaking,  we  may  suppose,  might  have 
proved  as  difficult  on  this  as  it  would  have  been  on  the  other  side 
of  the  Atlantic.  But  however  this  might  have  been,  it  is  probable 
that  the  natural  effect  of  their  conduct  on  the  minds  of  men  in 
other  states,  and  the  treatment  they  received,  reacted  upon  the 
people  of  Khode  Island,  and  made  them  still  more  tenacious  and 
persistent  in  their  wrongful  course. 

But  we  need  not  go  out  of  the  state  itself  to  find  proof  that 
a majoritv  of  its  people  were  at  this  time  violent,  arbitrary,  and 
unenlightened,  both  as  to  their  true  interests  and  as  to  the  prin- 
ciples of  public  honesty.  Determined  to  adliere  to  their  paper- 
money  system,  they  did  not  pause  to  consider  and  to  discuss  the 
great  questions  respecting  the  Constitution — its  bearing  upon  the 
welfare  of  the  states— its  effect  upon  public  liberty  and  social  or- 
der  the  necessity  for  its  amendment  in  certain  particulars — which 

led,  in  the  conventions  of  the  other  states,  to  some  of  the  most 
important  debates  that  the  subjects  of  government  and  free  in- 


G96 


CONSTITUTIONAL  HISTORY. 


stitutions  have  ever  produced.  Indeed,  they  resolved  to  stifle  all 
such  discussions  at  once ; or,  at  any  rate,  to  prevent  them  from 
being  had  in  an  assembly  whose  proceedings  would  be  known  to 
the  world.  When  the  General  Assembly  received  the  Constitu- 
tion, at  their  session  in  October,  1787,  they  directed  it  to  be  pub- 
lished and  circulated  among  the  inhabitants  of  the  state.  In  Feb- 
ruary, 1788,  instead  of  calling  a convention,  they  referred  the 
adoption  of  the  Constitution  to  the  freemen  in  their  several  town- 
meetings,  for  the  purpose  of  having  it  rejected.  There  were  at 
this  time  a little  more  than  four  thousand  legal  voters  in  the  state. 
The  Federalists,  a small  minority,  indignant  at  the  course  of  the 
legislature,  generally  withdrew  from  the  meetings  and  refused  to 
vote.  The  result  was  that  the  people  of  the  state  appeared  to  be 
nearly  unanimous  in  rejecting  the  Constitution.* 

The  freemen  of  the  towns  of  Providence  and  Newport  there- 
upon presented  petitions  to  the  General  Assembly,  complaining 
of  the  inconvenience  of  acting  upon  the  proposed  Constitution  in 
meetings  in  which  the  people  of  the  seaport  towns  and  the  people 
of  the  country  could  not  hear  and  answer  each  other’s  arguments, 
or  agree  upon  the  amendments  that  it  might  be  desirable  to  pro- 
pose, and  praying  for  a state  convention.  Their  application  was 
refused,  and  Khode  Island  remained  in  this  position  at  the  time 
when  the  question  of  organizing  the  new  government  came  before 
the  Congress  of  the  Confederation,  in  July,  1788. 

Better  counsels  prevailed  with  her  people  at  a later  period, 
and  the  same  redeeming  virtue  and  good  sense  were  at  length  tri- 
umphant which,  in  still  more  recent  trials,  have  enabled  her  to 
overcome  error  and  party  passion,  and  the  false  notions  of  liberty 
that  have  sometimes  prevailed  within  her  borders.  As  the  stranger 
now  traverses  her  little  territory,  in  the  journey  of  less  than  a day, 
and  beholds  her  ample  enjoyment  of  all  civil  and  religious  bless- 
ings— her  busy  towns,  her  fruitful  fields,  her  fair  seat  of  learning, 
crowning  her  thriving  capital,  her  free,  happy,  and  prosperous  peo- 
ple, her  noble  waters  where  she  sits  enthroned  upon  her  lovely 
isles — and  remembers  some  parts  of  her  history,  he  cannot  fail, 
in  his  prayer  for  her  welfare,  to  breathe  the  hope  that  an  escape 


1 There  were  2708  votes  thrown  against  it,  and  232  in  its  favor.  Tliis  oc- 
curred in  March,  1788. 


FINAL  RISK  TO  BE  ENCOUNTERED.  C97 

from  great  social  perils  may  be  found  for  her  and  for  all  of  us,  in 
the  future,  as  it  has  been  in  the  past. 

But  the  attitudes  taken  by  North  Carolina  and  Ehode  Island— 
although  in  truth  quite  different  and  taken  from  very  different 
motives— placed  the  Union  in  a new  crisis,  involving  the  Constitu- 
tion in  great  danger  of  being  defeated,  notwithstanding  its  adop- 
tion by  more  than  nine  states.  Both  of  them  were  members  of 
the  existing  confederacy ; both  had  a right  to  vote  on  all  ques- 
tions coming  before  the  Congress  of  that  confederacy ; and  it  was 
to  this  body  that  the  national  Convention  itself  had  looked  for 
the  initiatory  measures  necessary  to  organize  the  new  government 
under  the  Constitution.  The  question  whether  that  government 
should  be  organized  at  all  was  necessarily  involved  with  the  ques- 
tion as  to  the  place  where  it  should  be  directed  to  assemble  and 
to  exercise  its  functions.  This  latter  topic  had  often  been  a source 
of  dissension  between  the  states ; and  there  was  much  danger  lest 
the  votes  of  North  Carolina  and  Khode  Island,  in  the  Congress  of 
the  Confederation,  by  being  united  with  the  votes  of  states  op- 
posed to  the  selection  of  the  place  that  might  be  named  as  the 
seat  of  the  new  government,  might  prevent  the  Constitution  from 
being  established  at  all. 


I 


f 


fi 

i 

i 


A P P E N D I X 


IN  CONGEESS. 


Circular  Letter  of  Congress  recommending  the  Adoption  of 
THE  Articles  of  Confederation. 

In  Congress,  A’orktown,  November  lltTi,  1777. 

Congress  having  agreed  upon  a plan  of  confederacy  for  securing  the  free- 
dom, sovereignty,  and  independence  of  the  United  States,  authentic  copies  are 
now  transmitted  for  the  consideration  of  the  respective  legislatures. 

This  business,  equally  intricate  and  important,  has  in  its  progress  been  at- 
tended with  uncommon  embarrassments  and  delay,  which  the  most  anxious 
solicitude  and  persevering  diligence  could  not  prevent.  To  form  a permanent 
union,  accommodated  to  the  opinion  and  wishes  of  the  delegates  of  so  many 
states  differing  in  habits,  produce,  commerce,  and  internal  police,  was  found  to 
be  a work  which  nothing  but  time  and  reflection,  conspiring  with  a disposition 
to  conciliate,  could  mature  and  accomplish. 

Hardly  is  it  to  be  expected  that ‘any  plan,  in  the  variety  of  provisions  essen- 
tial to  our  union,  should  exactly  correspond  with  the  maxims  and  political  views 
of  every  particular  state.  Let  it  be  remarked  that,  after  the  most  careful  in- 
quiry and  the  fullest  information,  this  is  proposed  as  the  best  which  could  be 
adapted  to  the  circumstances  of  all,  and  as  that  alone  which  aflbrds  any  toler- 
able prospect  of  general  satisfaction. 

Permit  us,  then,  earnestly  to  recommend  these  articles  to  the  immediate  and 
dispassionate  attention  of  the  legislatures  of  tlie  respective  states.  Let  them 
be  candidly  reviewed,  under  a sense  of  the  difficulty  of  combining  in  one  gen- 
eral system  the  various  sentiments  and  interests  of  a continent  divided  into  so 
many  sovereign  and  independent  communities,  under  a conviction  of  the  abso- 
lute necessity  of  uniting  all  our  counsels  and  all  our  strength  to  maintain  and 
defend  our  common  liberties;  let  them  be  examined  with  a liberality  becoming 
Iwethren  and  fellow-citizens  surrounded  by  the  same  imminent  dangers,  contend- 
ing for  the  same  illustrious  prize,  and  deeply  interested  in  being  forever  bound 
and  connected  together  by  ties  the  most  intimate  and  indissoluble;  and,  finally, 
let  them  be  adjusted  with  the  temper  and  magnanimity  of  wise  and  patriotic 


700 


CONSTITUTIONAL  HISTORY. 


legislators  who,  while  they  are  concerned  for  the  prosperity  of  their  own  more 
immediate  circle,  are  capable  of  rising  superior  to  local  attachments  when  they 
may  be  incompatible  with  the  safety,  happiness,  and  glory  of  the  general  con- 
federacy. 

We  have  reason  to  regret  the  time  which  has  elapsed  in  preparing  this  plan 
for  consideration with  additional  solicitude  we  look  forward  to  that  which 
must  be  necessarily  spent  before  it  can  be  ratified.  Every  motive  loudly  calls 
upon  us  to  hasten  its  conclusion. 

More  than  any  other  consideration,  it  will  confound  our  foreign  enemies, 
defeat  the  flagitious  practices  of  the  disafl'ected,  strengthen  and  confirm  our 
friends,  support  our  public  credit,  restore  the  value  of  our  money,  enable  us  to 
maintain  our  fleets  and  armies,  and  add  weight  and  respect  to  our  counsels  at 
home  and  to  our  treaties  abroad. 

In  short,  this  salutary  measure  can  no  longer  be  deferred.  It  seems  essential 
to  our  very  existence  as  a free  people,  and  without  it  we  may  feel  constrained  to 
bid  adieu  to  independence,  to  liberty  and  safety — blessings  which,  from  the 
justice  of  our  cause  and  the  favor  of  our  Almighty  Creator  visibly  manifested 
in  our  protection,  we  have  reason  to  expect,  if,  in  an  humble  dependence  on  his 
divine  providence,  we  strenuously  exert  the  means  which  are  placed  in  our 
power. 

To  conclude,  if  the  legislature  of  any  state  shall  not  be  assembled.  Congress 
recommend  to  the  executive  authority  to  convene  it  without  delay;  and  to  each 
respective  legislature  it  is  recommended  to  invest  its  delegates  wdth  competent 
powers  ultimately,  in  the  name  and  behalf  of  the  state,  to  subscribe  Articles  of 
Confederation  and  Perpetual  Union  of  the  United  States ; and  to  attend  Con- 
gress for  that  purpose  on  or  before  the  tenth  day  of  March  next. 


NEW  JERSEY. 


Representation  of  the  State  of  New  Jersey  on  the  Articles 
OF  Confederation,  read  in  Congress,  June  25th,  1778. 

To  the  United  States  in  Congress  assembled : The  Uepresentation  of  the  Legislative 
Council  and  General  Assembly  of  the  State  of  New  Jersey  showeth  : 

That  the  Articles  of  Confederation  and  Perpetual  Union  between  the  states 
of  New  Hampshire,  Massachusetts  Bay,  Rhode  Island  and  Providence  Planta- 
tions, Connecticut,  New  York,  New  Jersey,  Pennsylvania,  Delaware,  Maryland, 
Virginia,  North  Carolina,  South  Carolina,  and  Georgia,  proposed  by  the  hon- 
orable the  Congress  of  the  said  states,  severally  for  their  consideration,  have 
been  by  us  fully  and  attentively  considered;  on  which  we  beg  leave  to  remark 
as  follows : 

1.  In  the  fifth  article,  where,  among  other  things,  the  qualifications  of  the 
delegates  from  the  several  states  are  described,  there  is  no  mention  of  any  oath, 


APPENDIX. 


701 


test,  or  declaration,  to  be  taken  or  made  by  them  previous  to  their  admission  to 
seats  in  Congre.ss.  It  is,  indeed,  to  be  presumed  the  respective  states  will  be 
careful  that  the  delegates  they  send  to  assist  in  managing  the  general  interest  of 
the  Union  take  the  oaths  to  the  government  from  which  tliey  derive  their  au- 
thority; but  as  the  United  States,  collectively  considered,  have  interests,  as  well 
as  each  particular  state,  we  are  of  opinion  that  some  test  or  obligation  binding 
upon  each  delegate  while  he  continues  in  the  trust,  to  consult  and  pursue  the 
former  as  well  as  the  latter,  and  particularly  to  assent  to  no  vote  or  proceeding 
which  may  violate  the  general  confederation,  is  necessary.  The  laws  and  usages 
of  all  civilized  nations  evince  the  propriety  of  an  oath  on  such  occasions;  and 
the  more  solemn  and  important  the  deposit,  the  more  strong  and  explicit  ought 
the  obligation  to  be. 

2.  By  the  sixth  and  ninth  articles  the  regulation  of  trade  seems  to  be  com- 
mitted to  the  several  states  within  their  separate  jurisdictions,  in  such  a degree 
as  may  involve  many  difficulties  and  embarrassments,  and  be  attended  with  in- 
justice to  some  states  in  the  Union.  We  are  of  opinion  that  the  sole  and  ex- 
clusive power  of  regulating  the  trade  of  the  United  States  Muth  foreign  nations 
ought  to  be  clearly  vested  in  the  Congress;  and  that  the  revenue  arising  from 
all  duties  and  customs  imposed  thereon  ought  to  be  appropriated  to  the  building, 
equipping,  and  manning  a navy  for  the  protection  of  the  trade  and  defence  of  the 
coasts,  and  to  such  other  public  and  general  purposes  as  to  the  Congress  shall 
seem  proper,  and  for  the  common  benefit  of  the  states.  This  principle  appears 
to  us  to  be  just,  and  it  may  be  added  that  a great  security  will  by  tins  means  be 
derived  to  the  Union  from  the  establishment  of  a Cf)mmou  and  mutual  interest. 

3.  It  is  wisely  provided,  in  the  sixth  article,  that  no  body  of  forces  shall  be 
kept  up  by  any  state  in  time  of  peace,  except  such  number  only  as,  in  tlie  judg- 
ment of  the  United  States  in  Congress  assembled,  shall  be  deemed  requisite  to 
garrison  the  forts  necessary  for  the  defence  of  such  states.  We  think  it  ought 
also  to  be  provided  and  clearly  expressed,  that  no  body  of  troops  be  kept  up  by 
the  United  States  in  time  of  peace,  except  such  number  only  as  shall  be  allowed 
by  the  assent  of  the  nine  states.  A standing  army,  a military  establishment,  and 
every  appendage  thereof,  in  time  of  peace,  is  totally  abhorrent  from  the  ideas 
and  principles  of  this  state.  In  the  memorable  act  of  Congress  declaring  the 
United  Colonies  free  and  independent  states,  it  is  emphatically  mentioned,  as 
one  of  the  causes  of  separation  from  Great  Britain,  that  the  sovereign  thereof 
had  kept  up  among  us,  in  time  of  peace,  standing  armies  without  the  consent  of 
the  legislatures.  It  is  to  be  wdshed  the  liberties  and  happiness  of  the  people 
may,  by  the  Confederation,  be  carefully  and  explicitly  guarded  in  this  respect. 

4.  On  the  eighth  article  we  observe  that,  as  frequent  settlements  of  the  quotas 
for  supplies  and  aids  to  be  furnished  by  the  several  states  in  support  of  the  gen- 
eral treasury  will  be  requisite,  so  they  ought  to  be  secured.  It  cannot  be  thought 
improper,  or  unnecessary,  to  have  them  struck  once  at  least  in  every  five  years, 
and  oftener  if  circumstances  will  allow.  The  quantity  or  value  of  real  property 
in  some  states  may  increase  much  more  rapidly  tlian  in  others;  and,  therefore, 
the  quota  which  is  at  one  time  just  will  at  anotlier  be  disproportionate. 


702 


CONSTITUTIONAL  HISTORY. 


5.  The  boundaries  and  limits  of  each  state  ought  to  be  fully  and  finally  fixed 
and  made  known.  This  we  apprehend  would  be  attended  with  very  salutary 
effects,  by  preventing  jealousies,  as  well  as  controversies,  and  promoting  har- 
mony and  confidence  among  the  states.  If  the  circumstances  of  the  times 
would  not  admit  of  this,  previous  to  the  proposal  of  the  Confederation  to  tlie 
several  states,  the  establishment  of  the  principles  upon  which  and  the  rule  and 
mode  by  which  the  determination  might  be  conducted  at  a time  more  conven- 
ient and  favorable  for  despatching  the  same  at  an  early  period,  not  exceeding 
five  years  from  the  final  ratification  of  the  Confederation,  would  be  satisfactory. 

6.  The  ninth  article  provides  that  no  state  shall  be  deprived  of  territory  for 
the  benefit  of  the  United  States.  Whether  we  are  to  understand  that  by  terri- 
tory is  intended  any  land,  the  property  of  whicli  was  heretofore  vested  in  the 
crown  of  Great  Britain,  or  that  no  mention  of  such  land  is  made  in  the  Confed- 
eration, we  are  constrained  to  observe  that  tlie  present  war,  as  we  always  appre- 
liended,  was  undertaken  for  the  general  defence  and  interest  of  the  confederat- 
ing colonies,  now  the  United  States.  It  was  ever  the  confident  expectation  of 
this  state  that  the  benefits  derived  from  a successful  contest  were  to  be  general 
and  proportionate;  and  that  the  property  of  the  common  enemy, falling  in  con- 
sequence of  a prosperous  issue  of  the  war,  would  belong  to  tlie  United  States, 
and  be  appropriated  to  their  use.  We  are,  therefore,  greatly  disappointed  in 
finding  no  provision  made  in  the  Confederation  for  empowering  the  Congress 
to  dispose  of  such  property,  l)ut  especially  the  vacant  and  impatented  lands, 
commonly  called  the  crown  lands,  for  defraying  the  expenses  of  the  war,  and 
for  such  other  public  and  general  purposes.  The  jurisdiction  ought  in  every  in- 
stance to  belong  to  the  respective  states  within  the  charter  or  determined  limits 
of  which  such  lands  may  be  seated;  but  reason  and  justice  must  decide  that  the 
property  wdiich  existed  in  the  crown  of  Great  Britain,  previous  to  the  present 
Revolution,  ought  now  to  belong  to  the  Congress,  in  trust  for  the  use  and  bene- 
fit of  the  United  States.  They  have  fought  and  bled  for  it  in  proportion  to 
their  respective  abilities ; and  therefore  the  reward  ought  not  to  be  predilec- 
tionally  distributed.  Shall  such  states  as  are  shut  out  by  situation  from  availing 
themselves  of  the  least  advantage  from  this  quarter  be  left  to  sink  under  an 
enormous  debt,  whilst  others  are  enabled,  in  a short  period,  to  replace  all  their 
expenditures  from  the  hard  earnings  of  the  whole  confederacy? 

7.  The  ninth  article  also  provides  that  requisitions  for  the  land  forces  to  be 
furnished  by  the  several  states  shall  be  proportioned  to  the  number  of  ichite  in- 
habitants in  each.  In  the  act  of  Independence  we  find  the  following  declara- 
tion : “We  hold  these  truths  to  be  self-evident,  that  all  men  are  created  equal; 
that  they  are  endued  by  their  Creator  with  certain  unalienable  rights,  among 
wdiich  are  life,  liberty,  and  the  pursuit  of  liappiness.”  Of  this  doctrine  it  is 
not  a very  remote  consequence  that  all  tlie  inhabitants  of  every  society,  l>e  the 
color  of  their  complexion  wdiat  it  may,  are  bound  to  promote  the  interest  there- 
of, according  to  their  respective  abilities.  They  ought,  therefore,  to  be  brought 
into  the  account  on  this  occasion.  But  admitting  necessity  or  expediency  to 
justify  the  refusal  of  liberty  in  certain  circumstances  to  persons  of  a peculiar 


AP  PENDIX. 


703 


color,  w’C  tliink  it  unequal  to  reckon  upon  such  in  this  case.  Should  it  be  im- 
]>roper,  for  special  local  reasons,  to  admit  them  in  arms  for  the  defence  of  the 
nation,  yet  \vc  conceive  the  proportion  of  forces  to  be  embodied  ought  to  be 
fixed  according  to  the  whole  number  of  inhabitants  in  the  state,  from  whatever 
class  they  may  be  raised.  If  the  wdiole  number  of  inhabitants  in  a state,  whose 
inhabitants  are  all  whites,  both  those  who  are  called  into  the  field  and  those  wlio 
remain  to  till  the  ground  and  labor  in  the  mechanical  arts  and  otherwise,  arc 
reckoned  in  the  estimate  for  striking  the  proportion  of  forces  to  bo  furnished 
l,y  that  state,  ought  even  a part  of  the  latter  description  to  be  left  out  in 
another?  As  it  is  of  indispensable  necessity  in  every  war  that  a part  of  the 
inhabitants  be  employed  for  the  uses  of  husbandry  and  otherwise  at  home, 
while  others  are  called  into  the  field,  there  must  be  the  same  propriety  that  the 
owners  of  a different  color  who  are  employed  for  this  purpose  in  one  state, 
while  whites  are  employed  for  the  same  purpose  in  another,  be  reckoned  in  the 
account  of  the  inhabitants  in  the  present  instance. 

8.  In  order  that  the  quota  of  troops  to  be  furnished  in  each  state  on  occasion 
of  a war  may  be  equitably  ascertained,  w^e  are  of  opinion  that  the  inhabitants 
of  the  several  states  ought  to  be  numbered  as  frequently  as  the  nature  of  the 
case  will  admit,  once  at  least  every  five  years.  The  disproportioued  increase 
in  the  population  of  different  states  may  render  such  provisions  absolutely 
necessary. 

9.  It  is  provided  in  the  ninth  article  that  the  assent  of  nine  states  out  of  the 
thirteen  shall  be  necessary  to  determine  in  sundry  cases  of  the  highest  concern. 
If  this  proportion  be  proper  and  just,  it  ought  to  be  kept  up,  should  the  states 
increase  in  number,  and  a declaration  thereof  be  made  for  the  satisfaction  of  the 
Union. 

That  we  think  it  our  indispensable  duty  to  solicit  the  attention  of  Congress 
to  these  considerations  and  remarks,  and  to  request  that  the  purport  and  mean- 
ing of  them  be  adopted  as  part  of  the  general  confederation ; by  which  means 
we  apprehend  the  mutual  interest  of  all  the  states  will  be  better  secured  and 
promoted,  and  that  the  legislature  of  this  state  will  then  be  justified  in  ratifying 
the  same. 


Act  of  New  Jersey  accepting  the  Confederation,  passed  No- 
vember 19th,  1778. 

An  Act  to  authorize  and  empower  the  Delegates  of  the  State  of  Neic  Jersey  in  Con- 
gress to  subscribe  and  ratify  the  Articles  of  Confederation  and  Perpetual  Union 
between  the  sereral  States. 

Whereas,  Articles  of  Confederation  and  Perpetual  Union  between  the  states 
of  New  Hampshire,  Massachusetts  Bay,  Rhode  Island  and  Providence  Planta- 
tions, Connecticut,  New  York,  New  Jersey,  Pennsylvania,  Delaware,  Maryland, 
Virginia,  North  Carolina,  South  Carolina,  and  Georgia,  signed  in  the  Congress 
of  the  said  states  by  the  Honorable  Henry  Laurens,  Esquire,  their  President, 


704 


CONSTITUTIONAL  HISTORY. 


have  been  laid  before  tlie  legislature  of  this  state,  to  be  ratified  by  the  same,  if 
approved  : And  whereas,  notwithstanding  the  terms  of  the  said  Articles  of  Con- 
federation and  Perpetual  Union  are  considered  as  in  divers  respects  unequal  and 
disadvantageous  to  this  state,  and  the  objections  to  several  of  the  said  articles, 
lately  stated  and  sent  to  the  general  Congress  aforesaid  on  the  part  of  this  state, 
are  still  viewed  as  just  and  reasonable,  and  sundry  of  them  as  of  the  most  essen- 
tial moment  to  the  welfare  and  happiness  of  the  good  people  thereof:  Yet, 
under  the  full  conviction  of  the  present  necessity  of  acceding  to  the  confeder- 
acy proposed,  and  that  every  separate  and  detached  state  interest  ought  to  be 
postponed  to  the  general  good  of  the  Union : And  moreover,  in  firm  reliance 
that  the  candor  and  justice  of  the  several  states  will,  in  due  time,  remove  as  far 
as  possible  the  inequality  which  now  subsists  : 

Sect.  1.  Be  it  enacted  by  the  Council  and  General  Assembly  of  this  state, 
and  it  is  hereby  enacted  by  the  authority  of  the  same.  That  the  Honorable  John 
Witherspoon,  Abraham  Clark,  Nathaniel  Scudder,  and  Elias  Boudinot,  Esquires, 
delegates  representing  this  state  in  the  Congress  of  the  United  States,  or  any  one 
or  more  of  them,  be  and  they  are  hereby  authorized,  empowered,  and  directed, 
on  behalf  of  this  state,  to  subscribe  and  ratify  the  said  Articles  of  Confederation 
and  Perpetual  Union  between  the  states  aforesaid. 

Sect.  2.  And  be  it  further  enacted  by  the  authority  aforesaid.  That  the  said 
Articles  of  Confederation  and  Perpetual  Union,  so  as  aforesaid  subscribed  and 
ratified,  shall  thenceforth  become  conclusive  as  to  this  state,  and  obligatory 
thereon. 


DELAWARE. 

Resolutions  passed  by  the  Council  of  the  State  of  Delaware, 
January  23d,  1119,  respecting  the  Articles  of  Confederation 
and  Perpetual  Union,  and  concurred  in  by  the  House  of 
Assembly,  January  28th,  1779,  previous  to  their  passing  a Laav 

TO  EMPOWER  their  DELEGATES  TO  SIGN  AND  RATIFY  THE  SAID 

Articles  of  Confederation  and  Perpetual  Union. 

Resolved,  That  the  paper  laid  before  Congress  by  the  delegate  from 
Delaware,  and  read,  be  filed;  provided,  that  it  shall  never  be  consid- 
ered as  admitting  any  claim  by  the  same  set  up  or  intended  to  be 
set  up. 

The  paper  is  as  follows,  viz. : 

In  the  Council,  Saturday,  January  1779. 
The  Council,  having  resumed  the  consideration  of  the  committee’s  report  on 
the  Articles  of  Confederation  and  Perpetual  Union,  etc.,  came  to  the  following 
resolutions  therein  : 

Resolved,  That  this  state  tliink  it  necessary  for  the  peace  and  safety  of  the 


APPENDIX. 


Y05 


states  to  be  included  in  the  Union,  that  a moderate  extent  of  limits  should  be 
assigned  for  such  of  those  states  as  claim  to  the  Mississippi  or  South  Sea ; and 
that  the  United  States  in  Congress  assembled  should  and  ought  to  have  the 
power  of  fixing  their  western  limits. 

liesohed  also,  That  this  state  consider  themselves  justly  entitled  to  a right, 
in  common  with  the  members  of  the  Union,  to  that  extensive  tract  of  country 
which  lies  to  the  westward  of  the  frontiers  of  tlie  United  States,  the  property  of 
wliich  was  not  vested  in,  or  granted  to,  individuals  at  the  commencement  of  the 
jiresent  war : Tliat  the  same  hath  been,  or  may  be,  gained  from  the  king  of 
Great  Britain,  or  the  native  Indians,  by  the  blood  and  treasure  of  all,  and  ought 
therefore  to  be  a common  estate,  to  be  granted  out  on  terms  beneficial  to  the 
United  States. 

Resolved  also,  That  the  courts  of  law  established  within  this  state  are  compe- 
tent for  the  purpose  of  determining  all  controversies  concerning  tlie  private 
right  of  soil  claimed  within  tlie  same ; and  they  now,  and  at  all  times  hereafter, 
ought  to  have  cognizance  of  all  such  controversies  : That  the  indeterminate  pro- 
vision, in  the  ninth  article  of  the  Confederation,  for  deciding  upon  controversies 
that  may  arise  about  some  of  those  private  rights  of  soil,  tends  to  take  away 
such  cognizance,  and  is  contrary  to  the  declaration  of  rights  of  this  state ; and 
therefore  ought  to  receive  an  alteration. 

The  Council,  then,  taking  into  consideration  the  strong  and  earnest  recom- 
mendations of  Congress  forthwith  to  accede  to  the  present  plan  of  confederacy, 
and  the  probable  disadvantages  that  may  attend  the  further  delaying  a ratifica- 
tion thereof, 

Resolved,  That,  notwithstanding  the  terms  of  the  Articles  of  Confederation 
aforesaid  are  considered  as  in  divers  respects  unequal  and  disadvantageous  to 
this  state,  and  the  objections  in  the  report  of  tlie  committee  of  this  house,  and 
the  resolves  made  thereon,  are  viewed  as  just  and  reasonable,  and  of  great  mo- 
ment to  the  welfare  and  happiness  of  the  good  people  thereof ; yet,  under  the 
full  conviction  of  the  present  necessity  of  acceding  to  the  confederacy  proposed, 
and  in  firm  reliance  that  the  candor  and  justice  of  the  several  states  will  in  due 
time  remove  as  far  as  possible  the  objectionable  parts  thereof,  the  delegates  ap- 
])ointed  to  represent  this  state  in  Congress,  or  any  one  or  more  of  them,  be 
authorized,  empowered,  and  directed,  on  behalf  of  this  state,  to  subscribe  and 
ratify  the  said  Articles  of  Confederation  and  Perpetual  Union  between  the  sev- 
eral states  of  New  Hampshire,  Massachusetts  Bay,  Khode  Island  and  Providence 
Plantations,  Connecticut,  New  York,  New  Jersey,  Pennsylvania,  Delaware, 
Maryland,  Virginia,  North  Carolina,  South  Carolina,  and  Georgia ; and  tliat  the 
said  articles,  when  so  subscribed  and  ratified,  shall  be  obligatory  on  this  state. 

Extract  from  the  Minutes. 

Benjamin  Vining,  Cleid:  of  the  Council. 

Sent  for  concurrence. 

In  House  of  Assembly,  Thursday,  January  28^7q  1779. 

The  foregoing  resolutions  being  read  three  times,  and  considered,  are  con- 
curred in.  Nicholas  Van  Dyke,  SpeaTcer. 

I.— 45 


706 


CONSTITUTIONAL  HISTORY. 


Thursday,  February  I6th,  1779. 

Mr.  M‘Kean,  a delegate  for  Delaware,  laid  before  Congress  the  fol- 
lowing instrument,  empowering  the  delegates  of  that  state,  or  any  of 
them,  to  ratify  and  sign  the  Articles  of  Confederation. 

His  Excellency  Cesar  Rodney,  Esquire,  President,  Captain-General,  and  Com- 
mander-in-Chief  of  the  Delaware  State,  to  all  to  whom  these  Presents  shall 
come. — Greeting. 

Know  ye.  That,  among  the  records  remaining  in  the  rolls  office  in  the  Dela- 
ware State,  there  is  a certain  instrument  of  writing,  purporting  to  be  an  act  of 
the  General  Assembly  of  the  said  state,  which  said  act  is  contained  in  the  words 
and  tenor  here  following,  to  wit : 

IN  THE  YEAR  1779. 

An  Act  to  authorize  and  empower  the  Delegates  of  the  Delaware  State  to  suhscribe 
and  ratify  the  Articles  of  Confederation  and  Perpetual  Union  between  the  sev- 
er al  States. 

Whereas  Articles  of  Confederation  and  Perpetual  Union  between  the  states 
of  New  Hampshire,  Massachusetts  Bay,  Rhode  Island  and  Providence  Planta- 
tions, Connecticut,  New  York,  New  Jersey,  Pennsylvania,  Delaware,  Maryland, 
Virginia,  North  Carolina,  South  Carolina,  and  Georgia,  signed  in  the  general 
Con'gress  of  the  said  states  by  tlie  Honorable  Henry  Laurens,  Esquire,  their  then 
President,  have  been  laid  before  the  legislature  of  this  state,  to  be  ratified  by 
the  same,  if  approved  ; And  whereas,  notwithstanding  the  terms  of  the  Articles 
of  Confederation  and  Perpetual  Union  are  considered  as  in  divers  respects  un- 
equal and  disadvantageous  to  this  state ; and  the  objections  stated  on  the  part 
of  this  state  are  viewed  as  just  and  reasonable,  and  of  great  moment  to  the  wel- 
fare and  happiness  of  the  good  people  thereof;  yet,  under  the  full  conviction  of 
the  present  necessity  of  acceding  to  the  present  confederacy  proposed,  and  that 
tlie  interest  of  particular  states  ought  to  be  postponed  to  the  general  good  of 
the  Union ; and,  moreover,  in  firm  reliance  that  the  candor  and  justice  of  the 
several  states  will  in  due  time  remove  as  fiir  as  possible  the  objectionable  parts 
thereof : 

Be  it  enacted  by  the  General  Assembly  of  Delaware,  and  it  is  hereby  enacted 
by  the  authority  of  the  same.  That  the  Honorable  John  Dickinson,  Nicholas 
Van  Dyke,  and  Thomas  M‘Kean,  Esquires,  delegates  appointed  to  represent  this 
state  in  Congress,  or  any  one  or  more  of  them,  be,  and  they  hereby  are,  author- 
ized, empowered,  and  direeted,  on  behalf  of  this  state,  to  subscribe  and  ratify 
the  said  Articles  of  Confederation  and  Perpetual  Union  between  the  several 
states  aforesaid. 

And  be  it  further  enacted  by  the  authority  aforesaid.  That  the  said  Articles 


appendix. 


707 


of  Confedevntion  and  Perpetual  Union,  so  as  aforesaid  subscribed  and  ratified, 
shall  henceforth  become  obligatory  on  this  state. 

Signed  by  order  of  the  House  of  Assembly. 

Nicholas  Van  Dyke,  Speaker. 

Signed  by  order  of  the  Council, 

Thomas  Collins,  Speaker. 

Passed  at  Dover,  February  1st,  1779. 

All  whicb,  by  the  tenor  of  these  presents,  I have  caused  to  be  exemplified. 

In  testimony  whereof,  the  great  seal  of  the  Delaware  State  is  heieunto  af- 
fixed, at  Dover,  the  sixth  day  of  February,  in  the  year  of  our  Lord  one  thousand 
seven  hundred  and  seventy-nine,  and  in  the  third  year  of  the  Independence  of 
the  United  States  of  America.  Cesar  Rodney. 

By  his  Excellency’s  command.  James  Booth,  Secretary. 


MARYLAND. 

Friday,  May  21st,  1779. 

The  delegates  of  Maryland  informed  Congress  that  they  have  re- 
ceived instructions  respecting  the  Articles  of  Confederation,  which 
they  are  directed  to  lay  before  Congress,  and  have  entered  on  their 
Journals.  The  instructions,  being  read,  are  as  follows: 

Instructions  of  the  General  Assembly  of  Maryland.^  to  George  Plater.,  William  Paca., 
William  Carmichael,  John  Henry,  James  Forhes,  and  Daniel  of  St.  Thomas 
Jenifer,  Esquires. 

Gentlemen, — Having  conferred  upon  you  a trust  of  the  highest  nature,  it  is 
evident  we  place  great  confidence  in  your  integrity,  abilities,  and  zeal  to  pro- 
mote the  general  welfare  of  the  United  States,  and  the  particular  interest  of  this 
state,  where  the  latter  is  not  incompatible  with  the  former;  but  to  add  greater 
weight  to  your  proceedings  in  Congress,  and  take  away  all  suspicion  that  the 
opinions  you  there  deliver  and  the  votes  you  give  may  be  the  mere  opinions  of 
individuals,  and  not  resulting  from  your  knowledge  of  the  sense  and  deliberate 
judgment  of  the  state  you  represent,  we  think  it  our  duty  to  instruct  as  follow- 
eth  on  the  subject  of  the  Confederation — a subject  in  which,  unfortunately,  a 
supposed  difference  of  interest  has  produced  an  almost  equal  division  of  senti- 
ments among  the  several  states  composing  the  Union.  We  say  a supposed  dif- 
ference of  interests;  for  if  local  attachments  and  prejudices,  and  the  avarice 
and  ambition  of  individuals,  wmuld  give  way  to  the  dictates  of  a sound  policy, 
founded  on  the  principles  of  justice  (and  no  other  policy  but  wdi  at  is  founded  on 
those  immutable  principles  deserves  to  be  called  sound),  we  flatter  ourselves  this 
apparent  diversity  of  interests  would  soon  vanish,  and  all  the  states  would  con- 
federate on  terms  mutually  advantageous  to  all ; for  they  would  then  perceive 


CONSTITUTIONAL  HISTORY. 


708 

that  no  other  confederation  tlian  one  so  formed  can  be  lasting.  Although  the 
pressure  of  immediate  calamities,  the  dread  of  their  continuance  from  the  ap- 
pearance of  disunion,  and  some  other  peculiar  circumstances,  may  have  induced 
some  states  to  accede  to  the  present  Confederation,  contrary  to  their  own  inter- 
ests and  judgments,  it  requires  no  great  share  of  foresight  to  predict  that,  when 
those  causes  cease  to  operate,  the  states  which  have  thus  acceded  to  the  Confed- 
eration will  consider  it  as  no  longer  binding,  and  will  eagerly  embrace  the  first 
occasion  of  asserting  their  just  rights,  and  securing  their  independence.  Is  it 
possible  that  those  states  who  are  ambitiously  grasping  at  territories  to  which, 
in  our  judgment,  they  have  not  the  least  shadow  of  exclusive  right,  will  use 
with  greater  moderation  the  increase  of  wealth  and  power  derived  from  those 
territories,  when  acquired,  than  what  they  have  displayed  in  their  endeavors  to 
acquire  them  ? We  think  not.  We  are  convinced  the  same  spirit  which  hath 
prompted  them  to  insist  on  a claim  so  extravagant,  so  repugnant  to  every  prin- 
ciple of  justice,  so  incompatible  with  the  general  welfare  of  all  the  states,  will 
urge  them  on  to  add  oppression  to  injustice.  If  they  should  not  be  incited  by 
a superiority  of  wealth  and  strength  to  oppress  by  open  force  their  less  wealthy 
and  less  powerful  neighbors,  yet  depopulation,  and  consequently  the  impover- 
ishment, of  those  states  will  necessarily  follow,  which,  by  an  unfair  construction 
of  the  Confederation,  may  be  stripped  of  a common  interest,  and  the  common 
benefits  derivable  from  the  Western  country.  Suppose,  for  instance,  Virginia 
indisputably  possessed  of  the  extensive  and  fertile  country  to  which  she  has 
set  up  a claim,  what  would  be  the  probable  consequences  to  Maryland  of  such 
an  undisturbed  and  undisputed  possession  ? They  cannot  escape  the  least  dis- 
cerning. 

Virginia,  by  selling  on  the  most  moderate  terms  a small  ])roportion  of  the 
lands  in  question,  would  draw  into  her  treasury  vast  sums  of  money  ; and  in 
proportion  to  the  sums  arising  from  such  sales  would  be  enabled  to  lessen  her 
taxes.  Lands  comparatively  cheap,  and  taxes  comparatively  low,  with  the  lands 
and  taxes  of  an  adjacent  state,  would  quickly  drain  the  state  thus  disadvanta- 
geously  circumstanced  of  its  most  useful  inhabitants;  its  wealth  and  its  conse- 
quence in  the  scale  of  the  confederated  states  would  sink  of  course.  A claim  so 
injurious  to  more  than  one  half,  if  not  to  the  whole,  of  the  United  States,  ought 
to  be  supported  by  the  clearest  evidence  of  the  right.  Yet  what  evidences  of 
that  right  have  been  produced  ? What  arguments  alleged  in  support  either  ot 
the  evidences  or  the  right  ? None  that  we  liave  heard  of  deserving  a serious 
refutation. 

It  has  been  said  that  some  of  the  delegates  of  a neighboring  state  have  de- 
clared their  opinion  of  the  practicability  of  governing  the  extensive  dominion 
claimed  by  that  state.  Hence  also  the  necessity  was  admitted  of  dividing  its 
territory,  and  erecting  a new  state  under  the  auspices  and  direction  of  the  elder, 
from  whom  no  doubt  it  would  receive  its  form  of  government,  to  whom  it  would 
be  bound  by  some  alliance  or  confedcrac}^  and  by  whose  councils  it  would  be 
influenced.  Such  a measure,  if  ever  attempted,  would  certainly  be  opposed  by 
the  other  states  as  inconsistent  with  the  letter  and  spirit  of  the  proposed  Con- 


APPENDIX. 


709 


fedemtion.  Should  it  take  place  by  establishing  a sub-confederacy,  imperium  in 
imperio,  the  state  possessed  of  this  extensive  dominion  must  then  either  submit 
to  all  the  inconveniences  of  an  overgrown  and  unwieldy  government,  or  sutler 
the  authority  of  Congress  to  interpose  at  a future  time,  and  to  lop  off  a part  of 
its  territory,  to  be  erected  into  a new  and  free  state,  and  admitted  into  a con- 
federation on  such  conditions  as  shall  be  settled  by  nine  states.  If  it  is  necessary 
for  the  happiness  and  tranquillity  of  a state  thus  overgrown  that  Congress  should 
hereafter  interfere  and  divide  its  territory,  why  is  the  claim  to  that  territory  now 
made,  and  so  pertinaciously  insisted  on  ? We  can  suggest  to  ourselves  but  two 
motives;  either  the  declaration  of  relinquishing  at  some  future  period  a propor- 
tion of  the  country  now  contended  for  was  made  to  lull  suspicion  asleep,  and  to 
cover  the  designs  of  a secret  ambition,  or,  if  the  thought  was  seriously  enter- 
tained, the  lands  are  now  claimed  to  reap  an  immediate  profit  from  the  sale. 
We  are  convinced,  policy  and  justice  require,  that  a country  unsettled  at  the 
commencement  of  this  war,  claimed  by  the  British  crown,  and  ceded  to  it  by  the 
.treaty  of  Paris,  if  wrested  from  the  common  enemy  by  the  blood  and  treasure  of 
the  thirteen  states,  should  be  considered  as  a common  propert}’-,  subject  to  be 
parcelled  out  by  Congress  into  free,  convenient,  and  independent  governments, 
in  such  manner  and  at  such  times  as  the  wisdom  of  that  assembly  shall  here- 
after direct. 

Thus  convinced,  we  should  betray  the  trust  reposed  in  us  by  our  constituents, 
were  we  to  authorize  you  to  ratify,  on  their  behalf,  the  Confederation,  unless  it 
be  further  explained.  We  have  coolly  and  dispassionately  considered  the  sub- 
ject; we  have  weighed  probable  inconveniences  and  hardships  against  the  sac- 
rifice of  just  and  essential  rights;  and  do  instruct  you  not  to  agree  to  the  Con- 
federation, unless  an  article  or  articles  be  added  thereto  in  conformity  with  our 
declaration.  Should  we  succeed  in  obtaining  such  article  or  articles,  then  you 
are  hereby  fully  empowered  to  accede  to  the  Confederation. 

That  these  our  sentiments  respecting  our  Confederation  may  be  more  publicly 
known,  and  more  explicitly  and  concisely  declared,  we  have  drawn  up  the  an- 
nexed declaration,  which  we  instruct  you  to  lay  before  Congress,  to  have  it 
printed,  and  to  deliver  to  each  of  the  delegates  of  the  other  states  in  Congress 
assembled  copies  thereof,  signed  by  yourselves,  or  by  such  of  you  as  may  be 
present  at  the  time  of  delivery;  to  the  intent  and  purpose  that  the  copies  afore- 
said may  be  communicated  to  our  brethren  of  the  United  States,  and  the  con- 
tents of  the  said  declaration  taken  into  their  serious  and  candid  consideration. 

Also  we  desire  and  instruct  you  to  move,  at  a proper  time,  that  these  instruc- 
tions be  read  to  Congress  by  their  Secretary,  and  entered  on  the  Journals  of 
Congress. 

We  have  spoken  with  freedom,  as  became  freemen ; and  we  sincerely  wish 
that  these  our  representations  may  make  such  an  impression  on  that  assembly 
as  to  induce  them  to  make  such  addition  to  the  Articles  of  Confederation  as 
may  bring  about  a permanent  union. 

A true  copy  from  the  proceeding  of  December  loth,  1778. 

Test,  T.  Duckett,  C.  H.  B. 


710 


CONSTITUTIONAL  HISTORY. 


IN  CONGRESS. 

Saturday,  April  1st,  1780. 

The  committee  to  whom  was  referred  the  act  of  the  legislature  of 
the  State  of  New  York,  entitled,  “An  Act  to  facilitate  the  completion 
of  the  Articles  of  Confederation  and  Perpetual  Union  among  the  Unit- 
ed States  of  America,”  report. 

That,  having  met  on  the  business,  but  not  being  able  to  agree  to 
any  resolution  thereon,  desire  to  be  discharged ; which  act  is  in  the 
words  following,  viz. : 

An  Act  to  facilitate  the  Completion  of  the  Articles  of  Confederation  and  Perpetual 
Union  among  the  United  States  of  America. 

Whereas  nothing  under  Divine  Providence  can  more  effectually  contribute 
to  the  tranquillity  and  safety  of  the  United  States  of  America  than  a federal  al- 
liance, on  such  liberal  principles  as  will  give  satisfaction  to  its  respective  mem- 
bers ; And  whereas  the  Articles  of  Confederation  and  Perpetual  Union  recom- 
mended by  the  honorable  the  Congress  of  tlie  United  States  of  America  have 
not  proved  acceptable  to  all  tlie  states,  it  having  been  conceived  that  a portion 
of  the  waste  and  uncultivated  territory,  within  the  limits  or  claim  of  certain 
states,  ought  to  be  appropriated  as  a common  fund  for  the  expenses  of  the  war: 
And  the  people  of  the  State  of  New  York  being  on  all  occasions  disposed  to 
manifest  their  regard  for  their  sister  states,  and  their  earnest  desire  to  promote 
the  general  interest  and  security ; and  more  especially  to  accelerate  the  federal 
alliance,  by  removing,  as  far  as  it  depends  upon  them,  the  before-mentioned  im- 
pediment to  its  final  accomplishment : 

Be  it  therefore  enacted,  by  the  people  of  the  State  of  New  York,  represented 
in  Senate  and  Assembly,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  it  shall  and  may  be  lawful  to  and  for  the  delegates  of  this  state,  in  the 
honorable  Congress  of  the  United  States  of  America,  or  the  major  part  of  such 
of  them  as  shall  be  assembled  in  Congress,  and  they  the  said  delegates,  or  a major 
part  of  them,  so  assembled,  are  hereby  fully  authorized  and  empowered,  for  and 
on  behalf  of  this  state,  and  by  proper  and  authentic  acts  or  instruments,  to  limit 
and  restrict  the  boundaries  of  this  state,  in  the  western  parts  thereof,  by  such 
line  or  lines,  and  in  such  manner  and  form,  as  they  shall  judge  to  be  expedient, 
either  with  respect  to  the  jurisdiction  as  well  as  the  right  or  pre-emption  of  soil, 
or  reserving  the  jurisdiction  in  ])art,  or  in  the  whole,  over  the  lands  which  may 
be  ceded,  or  relinquislted,  with  respect  only  to  the  right  or  pre-emption  of  the 
soil. 

And  be  it  further  enacted  by  the  authority  aforesaid.  That  the  territory  which 
may  be  ceded  or  relinquished  by  virtue  of  this  act,  either  with  respect  to  the 
jurisdiction  as  well  as  the  right  or  pre-emption  of  soil,  or  the  right  or  pre-emption 


APPENDIX. 


Til 


of  soil  only,  shiill  be  iiml  enure  for  the  use  and  benefit  of  such  of  the  United  States 
as  shall  becouie  members  of  the  lederal  alliance  of  the  said  states,  and  lot  no 
other  use  or  purpose  whatever. 

And  be  it  further  enacted  by  the  authority  aforesaid,  That  all  the  lands  to 
be  ceded  and  relinquished  by  virtue  of  this  act,  for  the  benefit  of  the  United  States, 
with  respect  to  property,  but  which  shall  nevertheless  remain  under  the  jurisdic- 
tion of  this  state,  shall  be  disposed  of  and  appropriated  in  such  manner  only  as 
the  Congress  of  the  said  states  shall  direct ; and  that  a warrant  under  the  au- 
thority of  Congress  for  surveying  and  laying  out  any  part  thereof  shall  entitle 
the  party  in  Avhose  favor  it  shall  issue  to  cause  the  same  to  be  surveyed  and  laid 
out  and  returned  according  to  the  directions  of  such  warrant;  and  thereupon 
letters  patent  under  the  great  seal  of  this  state  shall  pass  to  the  grantee  for  the 
estate  specified  in  the  said  warrant ; for  which  no  other  fee  or  reward  shall  be 
demanded  or  received  than  such  as  shall  be  allowed  by  Congress. 

Provided  always,  and  be  it  further  enacted  by  the  authority  aforesaid.  That 
the  trust  reposed  by  virtue  of  this  act  shall  not  be  executed  by  the  delegates  of 
this  state,  unless  at  least  three  of  the  said  delegates  shall  be  present  in  Congress. 

State  of  New  York^  ss. 

I do  hereby  certify  that  the  aforegoing  is  a true  copy  of  the  original  act, 
passed  the  19th  of  February,  1780,  and  lodged  in  the  Secretary’s  office. 

Robert  Harpur,  B'y  Sec'y  State. 

Wednesday,  September  6th,  1780. 

Congress  took  into  consideration  the  report  of  the  committee  to 
whom  were  referred  the  instructions  of  the  General  Assembly  of  Mary- 
land to  their  delegates  in  Congress  respecting  the  Articles  of  Confed- 
eration, and  the  declaration  therein  referred  to ; the  act  of  the  legisla- 
ture of  Kew  York  on  the  same  subject;  and  the  remonstrance  of  the 
General  Assembly  of  Virginia,  which  report  was  agreed  to,  and  is  in 
the  words  following : 

That,  having  duly  considered  the  several  matters  to  them  submitted,  they 
conceive  it  unnecessary  to  examine  into  the  merits  or  policy  of  the  instructions 
or  declaration  of  the  General  Assembly  of  Maryland,  or  of  the  remonstrances  of 
the  General  Assembly  of  Virginia,  as  they  involve  questions  a discussion  of  which 
was  declined,  on  mature  consideration,  when  the  Articles  of  Confederation  were 
debated  ; nor,  in  the  opinion  of  the  committee,  can  such  questions  be  now  revived 
with  any  prospect  of  conciliation  : That  it  appears  more  advisable  to  press  upon 
these  states  which  can  remove  the  embarrassments  respecting  the  Western  coun- 
trv  a liberal  surrender  of  a portion  of  their  territorial  claims,  since  they  cannot 
be  preserved  entire  without  endangering  the  stability  of  the  general  confederacy ; 
to  remind  them  how  indispensably  necessary  it  is  to  establish  the  Federal  Union 
on  a fixed  and  permanent  basis,  and  on  principles  acceptable  to  all  its  respective 


712 


CONSTITUTIONAL  HISTORY. 


members;  liow  essential  to  public  credit  and  confidence,  to  the  support  of  our 
army,  to  the  vigor  of  our  councils,  and  success  of  our  measures,  to  our  tranquillity 
at  home,  our  reputation  abroad,  to  our  very  existence  as  a free,  sovereign,  and 
independent  people;  that  we  are  fully  persuaded  the  wisdom  of  the  respective 
legislatures  will  lead  them  to  a full  and  impartial  consideration  of  a subject  so 
interesting  to  the  United  States,  and  so  necessary  to  the  happy  establishment  of 
the  Federal  Union ; that  they  are  confirmed  in  these  expectations  by  a view  of 
the  before-mentioned  act  of  the  legislature  of  New  York,  submitted  to  their  con- 
sideration ; that  this  act  is  expressly  calculated  to  accelerate  the  federal  alliance, 
by  removing,  as  far  as  depends  on  that  state,  the  impediment  arising  from  the 
Western  country,  and  for  that  purpose  to  yield  up  a portion  of  territorial  claim 
for  the  general  benefit. 

Whereupon, 

Resolved^  That  copies  of  the  several  papers  referred  to  the  committee  be  trans- 
mitted, with  a copy  of  the  report,  to  the  legislatures  of  the  several  states ; and 
that  it  be  earnestly  recommended  to  these  states  who  have  claims  to  the  western 
country  to  pass  such  laws,  and  give  their  delegates  in  Congress  such  powers,  as 
may  effectually  remove  the  only  obstacle  to  a final  ratification  of  the  Articles  of 
Confederation  ; and  that  the  legislature  of  Maryland  be  earnestly  requested  to 
authorize  their  delegates  in  Congress  to  subscribe  the  said  articles. 


MARYLAND. 

Monday,  February  12th,  1781. 

The  delegates  of  Maryland  laid  before  Congress  a certified  copy  of 
an  act  of  the  legislature  of  that  state,  which  was  read,  as  follows : 

An  Act  to  empower  the  Delegates  of  this  State  in  Congress  to  suhscribe  and  ratify 
the  Articles  of  Confederation. 

Whereas  it  hath  been  said  that  the  common  enemy  is  encouraged,  by  this 
state  not  acceding  to  the  Confederation,  to  hope  that  the  union  of  the  sister 
states  may  be  dissolved ; and  therefore  prosecute  the  war  in  expectation  of  an 
event  so  disgraceful  to  America;  and  our  friends  and  illustrious  ally  are  impressed 
with  an  idea  that  the  common  cause  would  be  promoted  by  our  formally  acced- 
ing to  tlie  Confederation  : This  General  Assembly,  conscious  that  this  state  hath 
from  the  commencement  of  the  war  strenuously  exerted  herself  in  the  common 
cause,  and  fully  satisfied  that,  if  no  formal  confederation  was  to  take  place,  it 
is  the  fixed  determination  of  this  state  to  continue  her  exertions  to  the  utmost, 
agreeable  to  the  faith  pledged  in  the  Union — from  an  earnest  desire  to  conciliate 
the  affections  of  the  sister  states,  to  convince  all  the  world  of  our  unalterable 
resolution  to  support  the  independence  of  the  United  States,  and  the  alliance 


APPENDIX. 


713 


\\\[h  liis  most  Christian  Majesty;  and  to  destroy  forever  any  apprehension  of  our 
friends,  or  hope  in  our  enemies,  of  this  state  being  again  united  to  Great  Britain  : 
l?e  it  enacted  by  the  General  Assembly  of  Maryland,  That  the  delegates  of 
this  state  in  Congress,  or  any  two  or  three  of  them,  shall  be,  and  are  hereby,  em- 
powered and  required,  on  behalf  of  this  state,  to  subscribe  tlie  Articles  of  Con- 
federation and  Per[)etual  Union  between  the  states  of  New  Hampshire,  Massa- 
chusetts Bay,  Rhode  Island  and  Providence  Plantations,  Connecticut,  New  York, 
New  Jersey,  Pennsylvania,  Delaware,  Maryland,  Virginia,  North  Carolina,  South 
Carolina,  and  Georgia,  signed  in  the  general  Congress  of  the  said  states  by  the 
Honorable  Henry  Laurens,  Esquire,  their  tlien  President,  and  laid  before  the  leg- 
islature of  this  state  to  be  ratified,  if  approved;  and  that  tl>e  said  Articles  of 
Confederation  and  Perpetual  Union,  so  as  aforesaid  subscribed,  shall  thenceforth 
be  ratified  and  become  conclusive  as  to  this  state,  and  obligatory  thereon. 

And  it  is  hereby  declared,  that,  by  acceding  to  the  said  Confederation,  this 
state  doth  not  relinquish,  or  intend  to  relinquish,  any  right  or  interest  she  hath 
with  the  other  united  or  confederated  states  to  the  back  country;  but  claims 
the  same  as  fully  as  was  done  by  the  legislature  of  this  state  in  their  declaration 
which  stands  entered  on  the  journals  of  Congress  : this  state  relying  on  the  jus- 
tice of  the  several  states  hereafter,  as  to  the  said  claim  made  by  this  state. 

And  it  is  further  declared.  That  no  article  in  the  said  Confederation  can  or 
ought  to  bind  this  or  any  other  state  to  guarantee  any  exclusive  claim  of  any 
particular  state  to  the  soil  of  the  said  back  lauds,  or  any  such  claim  of  jurisdic- 
tion over  the  said  lands,  or  the  inhabitants  thereof. 

By  the  House  of  Delegates,  January  30th,  1781. 

Read  and  assented  to. 


By  order, 

By  the  Senate,  February  2, 1781. 

Read  and  assented  to. 


F.  Green,  Cleric. 


Thomas  Lee.  [L.  S.] 


By  order, 


Jas.  Maccubbin,  Glerh 


articles  of  confederation  and  per- 
petual UNION 

Between  the  States  of  New  Hampshire,  Massachusetts  Bay, 
Rhode  Island  and  Providence  Plantations,  Connecticut, 
New  York,  New  Jersey,  Pennsylvania,  Delaware,  Mary- 
LAND,ViRGiNiA,  North  Carolina,  South  Carolina,  and  Georgia. 

Art.  1.  The  style  of  this  Confederacy  shall  be  “ The  United  States  of  America.” 
Art.  2.  Each  state  retains  its  sovereignty,  freedom,  and  independence,  and 
every  power,  jurisdiction,  and  right  which  is  not  by  this  Confederation  express- 
ly delegated  to  the  United  States  in  Congress  assembled. 


7U 


CONSTITUTIONAL  HISTORY. 


Art.  3.  The  said  states  hereby  severally  enter  into  a firm  league  of  friendship 
with  each  other  for  their  common  defence,  the  security  of  their  liberties,  and  their 
mutual  and  general  welfare ; binding  themselves  to  assist  each  other  against  all 
force  olfered  to  or  attacks  made  upon  them  on  account  of  religion,  sovereignty, 
trade,  or  any  other  pretence  whatever. 

Art.  4.  The  better  to  secure  and  perpetuate  mutual  friendship  and  intercourse 
among  the  people  of  the  different  states  in  this  Union,  the  free  inhabitants  of  each 
of  these  states  (paupers,  vagabonds,  and  fugitives  from  justice  excepted)  shall  be 
entitled  to  all  privileges  and  immunities  of  free  citizens  in  the  several  states; 
and  the  people  of  each  state  shall  have  free  ingress  and  regress  to  and  from  any 
other  state,  and  shall  enjoy  therein  all  the  privileges  of  trade  and  commerce, 
subject  to  the  same  duties,  impositions,  and  restrictions  as  the  inhabitants  tliereof 
respectively,  provided  that  such  restriction  shall  not  extend  so  fur  as  to  prevent 
the  removal  of  property  imported  into  any  state  to  any  other  state,  of  which  the 
owner  is  an  inhabitant;  provided  also,  that  no  imposition,  duties,  or  restriction 
shall  be  laid  by  any  state  on  the  property  of  the  United  States,  or  either  of  them. 

If  any  person  guilty  of  or  charged  with  treason,  felony,  or  other  high  misde- 
meanor in  any  state,  shall  flee  from  justice  and  be  found  in  any  of  the  United 
States,  he  shall,  upon  demand  of  the  governor  or  executive  power  of  the  state 
from  which  he  fled,  be  delivered  up  and  removed  to  the  state  having  jurisdiction 
of  his  offence. 

Full  faith  and  credit  shall  be  given  in  each  of  these  states  to  the  records,  acts, 
and  judicial  proceedings  of  the  courts  and  magistrates  of  every  other  state. 

Art.  5.  For  the  more  convenient  management  of  the  general  interests  of  the 
United  States,  delegates  shall  be  annually  appointed,  in  such  manner  as  the  leg- 
islature of  each  state  shall  direct,  to  meet  in  Congress  on  the  first  Monday  in  No- 
vember, in  every  year,  with  a power  reserved  to  each  state  to  recall  its  delegates, 
or  any  of  them,  at  any  time  within  the  year,  and  to  send  others  in  their  stead, 
for  the  remainder  of  the  year. 

No  state  shall  be  represented  in  Congress  by  less  than  two  nor  by  more  than 
seven  members;  and  no  person  shall  be  capable  of  being  a delegate  for  more 
than  three  years  in  any  term  of  six  years;  nor  shall  any  person,  being  a delegate, 
be  capable  of  holding  any  office  under  the  United  States,  for  which  he,  oi  any 
other  for  his  benefit,  receives  any  salary,  fees,  or  emolument  of  any  kind. 

Each  state  shall  maintain  its  own  delegates  in  any  meeting  of  the  states,  and 
while  they  act  as  members  of  the  committee  of  the  states. 

In  determining  questions  in  the  United  States  in  Congress  assembled,  each 
state  shall  have  one  vote. 

Freedom  of  speech  and  debate  in  Congress  shall  not  be  impeached  or  ques- 
tioned in  any  court  or  place  out  of  Congress;  and  the  members  of  Congress  shall 
be  protected  in  their  persons  from  arrests  and  imprisonments,  during  the  time 
of  their  going  to  and  from  and  attendance  on  Congress,  excc[)t  for  treason,  felony, 
or  breach  of  the  peace. 

Art.  6.  No  state,  without  the  consent  of  the  United  States  in  Congress  as- 
sembled, shall  send  any  embassy  to,  or  receive  any  embassy  from,  or  enter  into 


APPENDIX. 


715 


any  conference,  agreement,  alliance,  or  treaty  with  any  king,  prince,  or  state;  nor 
shall  any  person  holding  any  office  of  profit  or  trust  under  the  United  States,  or 
any  of  them,  accept  of  any  present,  emolument,  office,  or  title  of  any  kind  what- 
ever from  anv  king,  prince,  or  foreign  state;  nor  shall  the  United  States  in  Con- 
gress assembled,  or  any  of  them,  grant  any  title  of  nobility. 

No  two  or  more  states  shall  enter  into  any  treaty,  confederation,  or  alliance 
whatever  between  them,  without  the  consent  of  the  United  States  in  Congress 
assembled,  specifying  accurately  the  purposes  for  which  the  same  is  to  be  entered 
into,  and  how  long  it  shall  continue. 

No  state  shall  lay  any  imposts  or  duties  which  may  interfere  with  any  stipu- 
lations in  treaties  entered  into  by  the  United  States  in  Congress  assembled,  with 
any  king,  prince,  or  state,  in  pursuance  of  any  treaties  already  proposed  by  Con- 
gress to  the  courts  of  France  and  Spain. 

No  vessels  of  war  shall  be  kept  up  in  time  of  peace  by  any  state,  except  sucli 
number  only  as  shall  be  deemed  necessary  by  the  United  States  in  Congress  as- 
sembled for  the  defence  of  such  state  or  its  trade ; nor  shall  any  bodx-of  foxces 
be  kept  up  by  any  state,  in  time  of  peace,  except  such  number  only  as,  in  the 
judgment  of  the  United  States  in  Congress  assembled,  shall  be  deemed  requisite 
to  garrison  the  forts  necessary  for  the  defence  of  such  state  ; but  every  state  shall 
always  keep  up  a well-regulated  and  disciplined  militia,  sufficiently  armed  and 
accoutred,  and  shall  provide  and  have  constantly  ready  for  use,  in  public  stores, 
a due  number  of  field-pieces  and  tents,  and  a proper  quantity  of  arms,  ammuni- 
tion, and  camp  equipage. 

No  state  shall  engage  in  any  wuir  without  the  consent  of  the  United  States  in 
Congress  assembled,  unless  such  state  be  actually  invaded  by  enemies  or  shall 
have  certain  advice  of  a resolution  being  formed  by  some  nation  of  Indians  to 
invade  such  state,  and  the  danger  is  so  imminent  as  not  to  admit  of  a delay  till 
the  United  States  in  Congress  assembled  can  be  consulted ; nor  shall  any  state 
grant  commission  to  any  ships  or  vessels  of  war,  nor  letters  of  marque  or  reprisal, 
except  it  be  after  a declaration  of  war  by  the  United  States  in  Congress  assem- 
bled, and  then  only  against  the  kingdom  or  state  and  the  subjects  thereof  against 
which  war  has  been  so  declared,  and  under  such  regulations  as  shall  be  estab- 
lished by  the  United  States  in  Congress  assembled,  unless  such  state  be  infested 
by  pirates,  in  which  case  vessels  of  war  may  be  fitted  out  for  that  occasion  and 
kept  so  long  as  the  danger  shall  continue,  or  until  the  United  States  in  Congress 
assembled  shall  determine  otherwise. 

Art.  7.  When  land  forces  are  raised  by  any  state  for  the  common  defence,  all 
officers  of  or  under  the  rank  of  colonel  shall  be  appointed  by  the  legislatures  of 
each  state  respectively  by  whom  such  forces  shall  be  raised,  or  in  such  manner 
as  such  state  shall  direct ; and  all  vacancies  shall  be  filled  up  by  the  state  which 
first  made  the  appointment. 

Art.  8.  All  charges  of  war  and  all  other  expenses  that  shall  be  incurred  for 
the  common  defence  or  general  welfare,  and  allowed  by  the  United  States  in 
Congress  assembled,  shall  be  defrayed  out  of  a common  treasury,  which  shall  be 
supplied  by  the  several  states  in  proportion  to  the  value  of  all  land  within  each 


CONSTITUTIONAL  HISTORY. 


no 

state  granted  to  or  surveyed  for  any  person,  as  such  land  and  the  buildings  and 
improvements  thereon  shall  be  estimated,  according  to  such  mode  as  the  United 
States  in  Congress  assembled  shall  from  time  to  time  direct  and  appoint. 

The  taxes  for  paying  that  proportion  sliall  be  laid  and  levied  by  the  authority 
and  direction  of  the  legislatures  of  the  several  states,  within  the  time  agreed  upon 
by  the  United  States  in  Congress  assembled. 

Art.  9.  The  United  States  in  Congress  assembled  shall  have  the  sole  and 
exclusive  right  and  power  of  determining  on  peace  and  war,  except  in  the  cases 
mentioned  in  the  sixth  article;  of  sending  and  receiving  ambassadors;  entering 
into  treaties  and  alliances,  provided  that  no  treaty  of  commerce  shall  be  made, 
whereby  tlie  legislative  power  of  the  respective  states  shall  be  restrained  from 
imposing  such  imposts  and  duties  on  foreigners  as  their  own  people  are  sub- 
jected to,  or  from  prohibiting  the  exportation  or  importation  of  any  species  of 
goods  or  commodities  whatsoever  ; of  establishing  rules  for  deciding  in  all  cases 
what  captures  on  land  or  water  shall  be  legal,  and  in  what  manner  prizes  taken 
by  land  or  naval  forces  in  the  service  of  the  United  States  shall  be  divided  or 
appropriated;  of^ranling -letters  of  marque  and_  reprisal  inutinie.  of  peace  ; ap- 
pointing courtsjbr  the  trial  of  piracies  and  felonies  committed  on  the  high  seas, 
and  establishing  courts  for  receiving  and  determining  finally  appeals  in  all  cases 
of  captures,  provided  that  no  member  of  Congress  shall  be  appointed  judge  of 
any  of  the  said  courts. 

^ The  United  States  in  Congress  assembled  shall  also  be  the  last  resort  on  ap- 
peal in  all  disputes  and  difierences  now  subsisting  or  that  hereafter  may  arise 
between  two  or  more  states  concerning  boundary,  jurisdiction,  or  any  other  cause 
whatever,  which  authority  shall  always  be  exercised  in  the  manner  following : 
whenever  the  legislative  or  executive  authority  or  lawful  agent  of  any  state  in 
controversy  with  another  shall  present  a petition  to  Congress,  stating  the  matter 
in  question  and  praying  for  a hearing,  notice  thereof  shall  be  given  by  order  of 
Congress  to  the  legislative  or  executive  authority  of  the  other  state  in  contro- 
versy, and  a day  assigned  for  the  appearance  of  the  parties  by  their  lawful  agents, 
who  shall  then  be  directed  to  appoint  by  joint  consent  commissioners  or  judges 
to  constitute  a court  for  hearing  and  determining  the  matter  in  question ; but 
if  they  cannot  agree.  Congress  shall  name  three  persons  out  of  each  of  the  United 
States,  and  from  the  list  of  such  persons  each  party  shall  alternately  strike  out 
one,  the  petitioners  beginning,  until  the  number  shall  be  reduced  to  thirteen  ; 
and  from  that  number  not  less  than  seven  nor  more  than  nine  names,  as  Con- 
gress shall  direct,  shall,  in  the  presence  of  Congress,  be  drawn  out  by  lot;  and 
the  persons  whose  names  shall  be  so  drawn,  or  any  five  of  them,  shall  be  com- 
missioners or  judges  to  hear  and  finally  determine  the  controvers}^,  so  always  as 
a major  part  of  the  judges  who  shall  hear  the  cause  shall  agree  in  the  determi- 
nation ; and  if  either  party  shall  neglect  to  attend  at  the  day  appointed,  without 
showing  reasons  which  Congress  shall  judge  sufficient,  or,  being  present,  shall 
refuse  to  strike,  the  Congress  shall  proceed  to  nominate  three  persons  out  of  each 
state,  and  the  Secretary  of  Congress  shall  strike  in  behalf  of  such  party  absent 
or  refusing;  and  the  judgment  and  sentence  of  the  court  to  be  appointed,  in  the 


APPENDIX. 


717 


manner  before  prescribed,  shall  be  final  and  conclusive  ; and  if  any  of  the  parties 
shall  refuse  to  submit  to  the  authority  of  such  court,  or  to  appear  or  defend  their 
claim  or  cause,  the  court  shall  nevertheless  proceed  to  pronounce  sentence  or 
judgment,  which  shall  in  like  manner  be  final  and  decisive,  the  judgment  or 
sentence  and  other  proceedings  being  in  either  case  transmitted  to  Congress,  and 
lodged  among  the  acts  of  Congress,  for  the  security  of  the  parties  concerned : 
jirovided,  that  every  commissioner,  before  he  sits  in  judgment,  shall  take  an  oath, 
to  be  administered  by  one  of  the  judges  of  the  Supreme  or  Superior  Court  of  the 
state  where  the  cause  shall  be  tried,  “ well  and  truly  to  hear  and  determine  the 
matter  in  question,  according  to  the  best  of  his  judgment,  without  favor,  affec- 
tion, or  hope  of  reward  provided,  also,  that  no  stale  shall  be  deprived  of  terri- 
tory for  the  benefit  of  the  United  States. 

^ All  controversies  concerning  the  private  right  of  soil,  claimed  under  difi'er- 
ent  grants  of  two  or  more  states,  wdiose  jurisdictions  as  they  may  respect  such 
lands  and  the  states  which  passed  such  grants  are  adjusted,  the  said  grants  or 
either  of  them  being  at  the  same  time  claimed  to  have  originated  antecedent  to 
such  settlement  of  jurisdiction,  shall,  on  the  petition  of  either  party  to  the  Con- 
gress of  the  United  States,  be  finally  determined,  as  near  as  may  be  in  the  same 
manner  as  is  before  prescribed  for  deciding  disputes  respecting  territorial  juris- 
diction between  different  states. 

The  United  States  in  Congress  assembled  shall  also  have  the  sole  and  exclu- 
sive right  and  power  of  regulating  the  alloy  and  value  of  coin  struck  by  their 
own  authority,  or  by  that  of  the  respective  states  ; fixing  the  standard  of  weights 
and  measures  throughout  the  United  States ; regulating  the  trade  and  manag- 
ing all  athiirs  with  the  Indians  not  members  of  any  of  the  states,  provided  that 
the  legislative  riglit  of  any  state  within  its  own  limits  be  not  infringed  or  vio- 
lated ; establishing  and  regulating  post-offices  from  one  state  to  another  througii- 
out  all  the  United  States,  and  exacting  such  postage  on  the  papers  passing 
through  the  same  as  may  be  requisite  to  defray  the  expenses  of  the  said  office ; 
appointing  all  officers  of  the  naval  forces,  and  commissioning  all  officers  what- 
ever in  tlie  service  of  the  United  States;  making  rules  for  the  government  and 
regulation  of  the  said  land  and  naval  forces,  and  directing  their  operations. 

The  United  States  in  Congress  assembled  shall  have  authority  to  appoint  a 
committee  to  sit  in  the  recess  of  Congress,  to  be  denominated  “ a Committee  of 
the  States,”  and  to  consist  of  one  delegate  from  each  state,  and  to  appoint  such 
otlier  committees  and  civil  officers  as  may  be  necessary  for  managing  the  general 
affairs  of  the  United  States,  under  their  direction  ; to  appoint  one  of  their  num- 
ber to  preside,  provided  that  no  person  be  allowed  to  serve  in  tlie  office  of 
President  more  than  one  year  in  any  term  of  three  years ; to  ascertain  the  nec- 
essary sums  of  money  to  be  raised  for  the  service  of  tlie  United  States,  and  to 
appropriate  and  apply  the  same  for  defi-aying  the  public  expenses  ; to  borrow 
money  or  emit  bills  on  the  credit  of  the  United  States,  transmitting  every  half- 
year  to  the  respective  states  an  account  of  the  sums  of  money  so  borrowed  or 
emitted ; to  build  and  equip  a navy  ; to  agree  upon  the  number  of  land  forces, 
and  to  make  requisitions  from  each  state  for  its  quota,  in  proportion  to  the 


718 


CONSTITUTIONAL  HISTORY. 


number  of  \\’bite  inhabitants  in  such  state;  which  requisition  shall  be  binding, 
and  thereupon  the  legislature  of  each  state  shall  appoint  the  regimental  officers, 
raise  tlie  men,  and  clothe,  arm,  and  equip  them  in  a soldierlike  manner,  at  the 
expense  of  the  United  States;  and  the  officers  and  men  to  be  clothed,  armed, 
and  equipped  shall  march  to  the  place  appointed,  and  within  the  time  agreed 
on,  by  the  United  States  in  Congress  assembled:  but  if  the  United  States  in 
Congress  assembled  shall,  on  consideration  of  circumstances,  judge  proper  that 
any  state  should  not  raise  men  or  should  raise  a smaller  number  than  its  quota, 
and  that  any  other  state  should  raise  a greater  number  of  men  than  the  quota 
thereof,  such  extra  number  shall  be  raised,  officered,  clothed,  armed,  and  equipped 
in  the  same  manner  as  the  quota  of  such  state,  unless  the  legislature  of  such  state 
shall  judge  that  such  extra  number  cannot  be  safely  spared  out  of  the  same,  in 
which  case  they  shall  raise,  officer,  clothe,  arm,  and  equip  as  many  of  such  extra 
number  as  they  judge  can  be  safely  spared.  And  the  officers  and  men  so 
clothed,  armed,  and  equipped  shall  march  to  the  place  appointed,  and  within 
the  time  agreed  on,  by  the  United  States  in  Congress  assembled. 

The  United  States  in  Congress  assembled  shall  never  engage  in  a war  nor 
grant  letters  of  marque  and  reprisal  in  time  of  peace,  nor  enter  into  any  treaties 
or  alliances,  nor  coin  money  nor  regulate  the  value  thereof,  nor  ascertain  the 
sums  and  expenses  necessary  for  the  defence  and  welfare  of  the  United  States,  or 
any  of  them  ; nor  emit  bills,  nor  borrow  money  on  the  credit  of  the  United  States, 
nor  appropriate  money,  nor  agree  upon  the  number  of  vessels  of  war  to  be  built  or 
purchased,  or  the  number  of  land  or  sea  forces  to  be  raised,  nor  appoint  a com- 
mander-in-chief of  the  army  or  nav}%  unless  nine  states  assent  to  the  same ; nor 
shall  a question  on  any  other  point,  except  for  adjourning  from  day  to  day,  be 
determined,  unless  by  the  votes  of  a majority  of  the  United  States  in  Congress 
assembled. 

The  Congress  of  the  United  States  shall  have  power  to  adjourn  to  any  time 
within  the  year,  and  to  any  place  within  the  United  States,  so  that  no  peiiod  of 
adjournment  be  for  a longer  duration  than  the  space  of  six  months,  and  shall 
publish  the  journal  of  their  proceedings  monthly,  except  such  parts  thereof  re- 
lating to  treaties,  alliances,  or  military  operations,  as  in  tlieir  judgment  require  se- 
crecy; and  the  yeas  and  nays  of  the  delegates  of  each  state  on  any  question  shall 
be  entered  on  the  journal,  when  it  is  desired  by  any  delegate  ; and  the  delegates 
of  a state,  or  any  of  them,  at  his  or  their  request,  shall  be  furnished  with  a 
transcript  of  the  said  journal,  except  such  parts  as  are  above  excepted,  to  lay 
before  the  legislatures  of  the  several  states. 

Art.  10.  The  Committee  of  the  States,  or  any  nine  of  them,  shall  be  author- 
ized to  execute,  in  the  reeess  of  Congress,  such  of  the  powers  of  Congress  as 
the  United  States  in  Congress  assembled,  by  the  consent  of  nine  states,  shall, 
from  time  to  time,  think  expedient  to  vest  them  with,  provided  that  no  power 
be  delegated  to  the  said  Committee,  for  the  exercise  of  which,  by  the  Articles 
of  Confederation,  the  voice  of  nine  states  in  the  Congress  of  the  United  States 
assembled  is  requisite. 

Art.  11.  Canada,  acceding  to  this  Confederation,  and  joining  in  the  mens- 


APPENDIX. 


719 


ures  of  the  United  States,  shall  be  admitted  into  and  entitled  to  all  the  advan- 
tages of  this  Union  ; but  no  other  Colony  shall  be  admitted  into  the  same  unless 
such  admission  be  agreed  to  by  nine  states. 

Art.  12.  All  bills  of  credit  emitted,  moneys  borrowed,  and  debts  contracted 
by  or  under  the  authority  of  Congress,  beh)re  the  assembling  of  the  United 
States,  in  pursuance  of  the  present  Confederation,  shall  be  deemed  and  consid- 
ered as  a charge  against  the  United  States,  for  payment  and  satisfaction  whereof 
the  said  United  States  and  the  public  faith  are  liereby  solemnly  pledged. 

Art.  13.  Every  state  shall  abide  by  the  determinations  of  the  United  States 
in  Congress  assembled  on  all  questions  which  by  this  Confederation  are  submit- 
ted to  them.  And  the  Articles  of  this  Confederation  shall  be  inviolably  observed 
by  every  state,  and  the  Union  shall  be  perpetual;  nor  shall  any  alteration  at 
any  time  hereafter  be  made  in  any  of  them ; unless  such  alteration  be  agreed  to 
in  a Congress  of  the  United  States,  and  be  afterwards  confirmed  by  the  legisla- 
tures of  every  state. 

These  Articles  shall  be  proposed  to  the  legislatures  of  all  the  United  States, 
to  be  considered,  and  if  approved  of  by  them,  they  are  advised  to  authorize 
their  delegates  to  ratify  the  same  in  the  Congress  of  the  United  States;  which 
being  done,  the  same  shall  become  conclusive. 


members  of  the  convention  which 

FORMED  THE  CONSTITUTION.' 


Those  wdth  numbers  before  their  names  signed  the  Constitution. 
Those  Without  numbers  attended,  but  did  not  sign.  The  dates  denote 
the  first  day  of  their  attendance.  Those  in  italics  never  attended. 

New  Hampshire. 

1.  John  Langdon,  23  July.  2.  Nicholas  Gilman,  23  July. 

John  Pickering.  Benjamin  West. 

Massachusetts. 


Francis  Dana.  4.  Rufus  King,  25  May. 

Elbridge  Gerry,  29  IMay.  Caleb  Strong,  28  May. 

3.  Nathaniel  Gorham,  28  May. 


Rhode  Island.  [No  appointment.] 


Connecticut. 

5.  William  S.  Johnson,  2 June.  Oliver  Ellsworth,  29  May. 

6.  Roger  Sherman,  30  May. 


^ This  table  is  taken  from  the  12th  volume  of  Mr.  Sparks’s  edition  of  Wash- 
ington's Writings,  p.  426. 


720 


CONSTITUTIONAL  HISTORY. 


New  York. 


Robert  Yates, 

25  May. 

John  Lansing. 

2 June. 

7.  Alexander  Hamilton, 

25  May. 

New  Jersey. 

8.  William  Livingston, 

5 June. 

John  Neilson. 

9.  David  Brearley, 

25  May. 

Abraham^  Clarh. 

William  C.  Houston, 

25  May. 

11.  Jonathan  Dayton, 

21  June. 

10.  William  Patterson, 

25  May. 

Pennsylvania. 

12.  Benjamin  Franklin, 

28  May. 

16.  Thomas  Fitzsimons, 

25  May. 

13.  Thomas  Mifflin, 

28  May. 

17.  Jared  Ingersoll, 

28  May. 

14.  Robert  Morris, 

25  May. 

18.  James  Wilson, 

25  May. 

15.  George  Clymer, 

28  May. 

19.  Gouverneur  Morris, 

25  May. 

Delaware. 

20.  George  Read, 

25  May. 

23.  Richard  Bassett, 

25  May. 

21.  Gunning  Bedford,  Jr., 

28  May. 

24.  Jacob  Broom, 

25  May. 

22.  John  Dickinson, 

28  May. 

Maryland. 

25.  James  McHenry, 

29  May. 

27.  Daniel  Carroll, 

9 July. 

2C.  Daniel  of  St.  Thomas 

John  Francis  Mercer, 

6 Aug. 

Jenifer, 

2 June. 

Luther  Martin, 

9 June. 

Virginia. 

28.  George  Washington, 

25  May. 

George  Mason, 

25  May. 

Patrich  Henry  (declined). 

George  Wythe, 

25  May. 

Udmund  Randolph, 

24  May. 

James  McClurg  (in  the 

29.  John  Blair, 

25  May. 

room  of  P.  Henry), 

25  May. 

30.  James  Madison,  Jr., 

25  May. 

North 

Carolina. 

Richard  Caswell  (resigi 

ned). 

Willie  Jones  (declined). 

Alexander  Martin, 

25  May. 

32.  Richard  D.  Spaight, 

25  May. 

William  R.  Davie, 

25  May. 

33.  Hugli  Williamson  (in  the 

31.  William  Blount  (in  the 

room  of  W.  Jones), 

25  May. 

room  of  R.  Caswell),  20  June. 

South 

Carolina. 

34.  John  Rutledge, 

25  May. 

36.  Charles  Pinckney, 

25  May. 

35.  Charles  C.  Pinckney, 

25  May. 

37.  Pierce  Butler, 

25  May. 

Georgia. 

38.  William  Few, 

25  May. 

George  Walton. 

39.  Abraham  Baldwin, 

11  June. 

William  Houstoun, 

1 June. 

William  Pierce, 

31  May. 

Nathaniel  Pendleton. 

APPENDIX. 


721 


FIRST  DRAFT  OF  THE  CONSTITUTION, 

AS  REPORTED  BY  THE  COMMITTEE  OF  DETAIL. 

Monday,  Avgi(st  Qth. 

la  Convention. — Mr.  RUTLEDGE  delivered  in  the  report  of  the  committee 
of  detail,  as  follows — a printed  copy  being  at  the  same  time  furnished  to  each 
member : 

We,  the  people  of  the  states  of  New  Hampshire,  Massachusetts,  Rhode  Island 
and  Providence  Plantations,  Connecticut,  New  York,  New  Jersey,  Pennsylvania, 
Delaware,  ?.Taryland,  Virginia,  North  Carolina,  South  Carolina,  and  Georgia,  do 
ordain,  declare,  and  establish  the  following  Constitution  for  the  government  of 
ourselves  and  our  posterity  : 

Article  I. — The  style  of  the  government  shall  be,  “The  United  States  of 
America.” 

Art.  II. — The  government  shall  consist  of  supreme,  legislative,  executive, 
and  judicial  powers. 

Art.  III. — The  legislative  power  shall  be  vested  in  a Congress,  to  consist  of 
two  separate  and  distinct  bodies  of  men,  a House  of  Representatives  and  a Sen- 
ate ; each  of  wdiich  shall  in  all  cases  have  a negative  on  the  other.  The  legisla- 
ture shall  meet  on  the  first  Monday  in  December  in  every  year. 

Art.  IV. — Sect.  1.  The  members  of  the  House  of  Representatives  shall  be 
chosen,  every  second  year,  by  the  people  of  the  several  states  comprehended 
within  this  Union.  The  qualifications  of  the  electors  shall  be  the  same,  from 
time  to  time,  as  those  of  the  electors,  in  the  several  states,  of  the  most  numerous 
branch  of  their  own  legislatures. 

Sect.  2.  Every  member  of  the  Hous^  of  Representatives  shall  be  of  the  age 
of  twenty-five  years  at  least;  shall  have  been  a citizen  in  the  United  States  for 
at  least  three  years  before  his  election and  shall  be,  at  the  time  of  his  election, 
a resident  of  the  state  in  which  he  shall  be  chosen. 

Sect.  3.  The  House  of  Representatives  shall,  at  its  first  formation,  and  until 
the  number  of  citizens  and  inhabitants  shall  be  taken  in  the  manner  hereinafter 
described,  consist  of  sixty-five  members,  of  whom  three  shall  be  chosen  in  New 
Hampshire,  eight  in  Massachusetts,  one  in  Rhode  Island  and  Providence  Plan- 
tations, five  in  Connecticut,  six  in  New  York,  four  in  New  Jersey,  eight  in 
Pennsylvania,  one  in  Delaware,  six  in  Maryland,  ten  in  Virginia,  five  in  North 
Carolina,  five  in  South  Carolina,  and  three  in  Georgia. 

Sect.  4.  As  the  proportions  of  numbers  in  different  states  will  alter  from 
time  to  time;  as  some  of  the  states  may  hereafter  be  divided;  as  others  may  be 
enlarged  by  addition  of  territory ; as  two  pr  more  states  may  be  united  ; as  new 
states  will  be  erected  within  the  limits  of  the  United  States  — the  legislature 
shall,  in  each  of  these  cases,  regulate  the  number  of  representatives  by  the  num- 

I.— 46 


722 


CONSTITUTIONAL  HISTORY. 


ber  of  inhabitants,  according  to  the  provisions  liereinafter  made,  at  the  rate  of 
one  for  every  forty  tlmusand. 

Sect.  5.  All  bills  for  raising  or  appropriating  money,  and  for  fixing  the  sala- 
ries of  the  officers  of  government,  shall  originate  in  the  House  of  Representatives, 
and  shall  not  be  altered  or  amended  by  the  Senate.  No  money  shall  be  drawn 
from  the  public  treasury,  but  in  pursuance  of  appropriations  that  shall  originate 
in  the  House  of  Representatives. 

Sect.  6.  The  House  of  Representatives  shall  have  the  sole  power  of  impeach- 
ment. It  shall  choose  its  speaker  and  other  officers. 

Sect.  7.  Vacancies  in  the  House  of  Representatives  shall  be  supplied  by 
MU-its  of  election  from  the  executive  authority  of  the  state  in  the  representation 
from  which  they  shall  happen. 

Art.  V.— Sect.  1.  The  Senate  of  the  United  States  shall  be  chosen  by  the 
legislatures  of  the  several  states.  Each  legislature  shall  choose  two  members. 
Vacancies  may  be  supplied  by  the  executive  until  the  next  meeting  of  the  legis- 
lature. Each  member  shall  have  one  vote. 

Sect.  2.  The  senators  shall  be  chosen  for  six  years ; but  immediately  after 
the  first  election,  they  shall  be  divided,  by  lot,  into  three  classes,  as  nearly  as 
may  be,  numbered  one,  two,  and  three.  The  seats  of  the  members  of  the  first 
class  shall  be  vacated  at  the  expiration  of  the  second  year;  of  the  second  class 
at  the  expiration  of  the  fourth  year;  of  the  third  class  at  the  expiration  of  the 
sixth  year ; so  that  a third  part  of  the  members  may  be  chosen  every  second  year. 

Sect.  3.  Every  member  of  the  Senate  shall  be  of  the  age  of  thirty  years  at 
least;  shall  have  been  a citizen  in  tlie  United  States  for  at  least  four  years  before 
liis  election  ; and  shall  be,  at  the  time  of  his  election,  a resident  of  the  state  for 
which  he  shall  be  chosen. 

Sect.  4.  The  Senate  shall  choose  its  own  president  and  other  officers. 

Art.  VI.— Sect.  1.  Tiie  times,  and  places,  and  manner,  of  holding  tlie  elec- 
tions of  the  members  of  eacli  House,  shall  be  i>rescribed  by  the  legislature  of 
each  state ; but  their  provisions  concerning  them  may,  at  any  time,  be  altered 
by  the  legislature  of  the  United  States. 

Sect.  2.  The  legislature  of  the  United  States  shall  have  authority  to  establish 
such  uniform  qualifications  of  the  members  of  each  House,  with  regard  to  prop- 
erty, as  to  the  said  legislature  shall  seem  expedient.  . 

Sect.  3.  In  each  House  a majority  of  the  members  shall  constitute  a quorum 
to  do  business;  but  a smaller  number  may  adjourn  from  day  to  day. 

Sect.  4.  Each  House  shall  be  the  judge  of  the  elections,  returns,  and  quali- 
fications of  its  own  members. 

Sect.  5.  Freedom  of  speech  and  debate  in  the  legislature  shall  not  be  im- 
peached or  questioned  in  any  court  or  place  out  of  the  legislature;  and  the 
members  of  each  House  shall,  in  all  cases,  except  treason,  felony,  and  breach  of 
the  peace,  be  privileged  from  arrest  during  their  attendance  at  Congress,  and  in 
going  to  and  returning  from  it. 

Sect.  6.  Each  House  may  determine  the  rules  of  its  proceedings;  may  pun- 
ish its  members  for  disorderly  behavior;  and  may  expel  a member. 


APPENDIX. 


723 


Sect.  7.  The  House  of  Representatives,  and  the  Senate  wlien  it  sliall  be  act- 
ing in  a legislative  capacity,  shall  keep  a journal  of  their  proceedings;  and  shall, 
from  time  to  time,  publish  them ; and  the  yeas  and  nays  of  the  members  of  each 
House,  on  any  question,  shall,  at  the  desire  of  one  fifth  part  of  the  members 
present,  be  entered  on  the  Journal. 

Sect.  8.  Neither  House,  without  the  consent  of  the  other,  shall  adjourn  for 
more  than  three  days,  nor  to  any  other  place  than  that  at  which  the  two  Houses 
arc  sitting.  But  this  regulation  shall  not  extend  to  the  Senate  when  it  shall 
exercise  the  powers  mentioned  in  the Article. 

Sect.  9.  The  members  of  each  House  shall  be  ineligible  to,  and  incapable  of 
holding,  any  office  under  the  authority  of  the  United  States,  during  the  time  for 
which  they  shall  respectively  be  elected  ; and  the  members  of  the  Senate  shall  be 
ineligible  to,  and  incapable  of  holding,  any  such  office  for  one  year  afterwards. 

Sect.  10.  The  members  of  each  House  shall  receive  a compensation  for  their 
services,  to  be  ascertained  and  paid  by  the  state  in  which  they  shall  be  chosen. 

Sect.  11.  The  enacting  style  of  the  laws  of  the  United  States  shall  be,  “Be 
it  enacted,  and  it  is  hereby  enacted,  by  the  House  of  Representatives,  and  by  the 
Senate  of  the  United  States,  in  Congress  assembled.” 

Sect.  12.  Each  House  shall  possess  the  right  of  originating  bills,  except  in 
the  cases  before  mentioned. 

Sect.  13.  Every  bill  which  shall  have  passed  the  House  of  Representatives 
and  the  Senate  shall,  before  it  becomes  a law,  be  presented  to  the  President  of 
the  United  States  for  his  revision.  If,  upon  such  revision,  he  approve  of  it,  he 
shall  signify  his  approbation  by  signing  it.  But  if,  upon  such  revision,  it  shall 
appear  to  him  improper  f)r  being  passed  into  a law,  he  shall  return  it,  together 
Avith  his  objections  against  it,  to  that  House  in  which  it  shall  have  originated; 
who  shall  enter  the  objections  at  large  on  their  Journal,  and  proceed  to  recon- 
sider the  bill.  But  if,  after  such  reconsideration,  two  thirds  of  that  House  shall, 
notwithstanding  the  objections  of  the  President,  agree  to  pass  it,  it  shall,  together 
with  his  objections,  be  sent  to  the  other  House,  by  which  it  shall  likewise  be 
reconsidered,  and,  if  approved  by  two  thirds  of  the  other  House  also,  it  shall 
become  a law.  But,  in  all  such  cases,  the  votes  of  both  Houses  shall  be  deter- 
mined by  yeas  and  nays ; and  the  names  of  the  persons  voting  for  or  against  the 
bill  shall  be  entered  on  the  Journal  of  each  House  respectively.  If  any  bill  shall 
not  be  returned  by  the  President  wdthin  seven  days  after  it  shall  have  been  pre- 
sented to  him,  it  shall  be  a law,  unless  the  legislature,  by  their  adjournment,  pre- 
vent its  return,  in  which  case  it  shall  not  be  a law. 

Art.  VII. — Sect.  1.  The  legislature  of  the  United  States  shall  have  the  power 
to  lay  and  collect  taxes,  duties,  imposts,  and  excises; 

To  regulate  commerce  with  foreign  nations,  and  among  the  several  states  ; 

To  establish  an  uniform  rule  of  naturalization  throughout  the  United  States; 

To  coin  money; 

To  regulate  the  value  of  foreign  coin ; 

To  fix  the  standard  of  weights  and  measures; 

To  establish  post-offices ; 


724: 


CONSTITUTIONAL  HISTORY. 


To  borrow  money,  and  emit  bills,  on  the  credit  of  the  United  States ; 

To  appoint  a treasurer  by  ballot ; 

To  constitute  tribunals  inferior  to  the  supreme  court; 

To  make  rules  concerning  captures  on  land  and  water; 

To  declare  the  law  and  punishment  of  piracies  and  felonies  committed  on 
the  high  seas,  and  the  punishment  of  counterfeiting  the  coin  of  the  United 
States,  and  of  ofi’ences  against  the  law  of  nations; 

To  subdue  a rebellion  in  any  state  on  the  application  of  its  legislature ; 

To  make  war ; 

To  raise  armies; 

To  build  and  equip  fleets; 

To  call  forth  the  aid  of  the  militia,  in  order  to  execute  the  laws  of  the  Union, 
enforce  treaties,  suppress  insurrections,  and  repel  invasions ; 

And  to  make  all  laws  that  shall  be  necessary  and  proper  for  carrying  into 
execution  the  foregoing  powers,  and  all  other  powers  vested  by  this  Constitution 
in  the  government  of  the  United  States,  or  in  any  department  or  oflice  thereof. 

Sect.  2.  Treason  against  the  United  States  shall  consist  only  in  levying  war 
against  the  United  States,  or  any  of  them;  and  in  adhering  to  the  enemies  of 
tlie  United  States,  or  any  of  tliem.  Tlie  legislature  of  the  United  States  shall 
have  power  to  declare  the  punishment  of  treason.  No'  person  sliall  be  convicted 
of  treason,  unless  on  the  testimony  of  two  witnesses.  No  attainder  of  treason 
shall  work  corruption  of  blood,  nor  forfeiture,  except  during  the  life  of  the 
person  attainted. 

Sect.  3.  The  proportions  of  direct  taxation  shall  be  regulated  by  tlie  whole 
number  of  white  and  other  free  citizens  and  inhabitants  of  every  age,  sex,  and 
condition,  including  those  bound  to  servitude  for  a term  of  years,  and  three  fifths 
of  all  other  persons  not  comprehended  in  the  foregoing  description  (except  In- 
dians not  paying  taxes)  ; which  number  shall,  within  six  years  after  the  fiist 
meeting  of  the  legislature,  and  within  the  term  of  every  ten  years  afterwards, 
be  taken  in  such  a manner  as  the  said  legislature  shall  direct. 

Sect.  4.  No  tax  or  duty  shall  be  laid  by  the  legislature  on  articles  exported 
from  any  state;  nor  on  the  migration  or  importation  of  such  persons  as  the  sev- 
eral states  shall  think  proper  to  admit;  nor  shall  such  migration  or  importation 
be  prohibited. 

Sect.  5.  No  capitation  tax  shall  be  laid,  unless  in  proportion  to  the  census 
hereinbefore  directed  to  be  taken. 

Sect.  6.  No  navigation  act  shall  be  passed  without  the  assent  of  two  thirds 
of  the  members  present  in  each  House. 

Sect.  7.  The  United  States  shall  not  grant  any  title  of  nobility. 

Art.  VIII.— The  acts  of  the  legislature  of  the  United  States  made  in  pursu- 
ance of  this  Constitution,  and  all  treaties  made  under  the  authority  of  the  United 
States,  shall  be  the  supreme  law  of  the  several  states,  and  of  their  citizens  and 
inhabitants  ; and  the  judges  in  the  several  states  shall  be  bound  thereby  in  their 
decisions,  anything  in  the  constitutions  or  laws  of  the  several  states  to  the  con- 
trary notwithstanding. 


APPENDIX. 


V25 

Art.  IX. — Sect.  1.  The  Senate  of  the  United  States  shall  have  power  to 
make  treaties,  and  to  appoint  ambassadors,  and  judges  of  the  supreme  court. 

Sect.  2.  In  all  disputes  and  controversies  now  subsisting,  or  that  may  here- 
after subsist,  between  two  or  more  states,  respecting  jurisdiction  or  territory, 
the  Senate  shall  possess  the  following  powers:  Whenever  the  legislature,  or  the 
executive  authority,  or  lawful  agent  of  any  state,  in  controversy  with  another, 
shall,  by  memorial  to  the  Senate,  state  the  matter  in  question,  and  apply  for  a 
hearing,  notice  of  such  memorial  and  application  shall  be  given,  by  order  of  the 
Senate,  to  the  legislature,  or  the  executive  authority,  of  the  other  state  in  con- 
troversy. The  Senate  shall  also  assign  a day  for  the  appearance  of  the  parties, 
by  their  agents,  before  that  House.  The  agents  shall  be  directed  to  appoint,  by 
joint  consent,  commissioners  or  judges  to  constitute  a court  for  hearing  and  de- 
termining the  matter  in  question.  But  if  the  agents  cannot  agree,  the  Senate 
shall  name  three  persons  out  of  each  of  the  several  states;  and  from  the  list  of 
such  persons,  each  party  shall  alternately  strike  out  one,  until  the  numljer  shall 
be  reduced  to  thirteen;  and  from  that  number  not  less  tlian  seven,  nor  more 
than  nine  names,  as  the  Senate  shall  direct,  shall,  in  their  presence,  be  drawn 
out  by  lot ; and  the  persons  whose  names  shall  be  so  drawn,  or  any  live  of  them, 
shall  be  commissioners  or  judges  to  hear  and  finally  determine  the  controversy  ; 
provided  a majority  of  the  judges  who  shall  hear  the  cause  agree  in  the  deter- 
mination. If  either  party  shall  neglect  to  attend  at  the  day  assigned,  without 
showing  sufficient  reasons  for  not  attending,  or  being  present  shall  refuse  to 
strike,  the  Senate  shall  proceed  to  nominate  three  persons  out  of  each  state,  and 
the  Clerk  of  the  Senate  shall  strike  in  behalf  of  the  party  absent  or  refusing. 
If  any  of  the  parties  shall  refuse  to  submit  to  the  authority  of  such  court,  or 
shall  not  appear  to  prosecute  or  defend  their  claim  or  cause,  the  court  shall  nev- 
ertheless proceed  to  pronounce  judgment.  The  judgment  shall  be  final  and 
conclusive.  The  proceedings  shall  be  transmitted  to  the  President  of  the  Sen- 
ate, and  shall  be  lodged  among  the  public  records,  for  the  security  of  the  parties 
concerned.  Every  commissioner  shall,  before  he  sit  in  judgment,  take  an  oath, 
to  be  administered  by  one  of  the  judges  of  the  supreme  or  superior  court  of  the 
state  where  the  cause  shall  be  tried,  “ well  and  truly  to  hear  and  determine  the 
matter  in  question,  according  to  the  best  of  his  judgment,  without  favor,  affec- 
tion, or  hope  of  reward.” 

Sect.  3.  All  controversies  concerning  lands  claimed  under  different  grants 
of  two  or  more  states,  whose  jurisdictions,  as  they  respect  such  lands,  shall  have 
been  decided  or  adjusted  subsequently  to  such  grants,  or  any  of  them,  shall,  on 
application  to  the  Senate,  be  finally  determined,  as  near  as  may  be,  in  the  same 
manner  as  is  before  prescribed  for  deciding  controversies  between  different  states. 

Art.  X. — Sect.  1.  The  executive  power  of  the  United  States  shall  be  vested 
in  a single  person.  His  style  shall  be,  ‘^Tlie  President  of  the  United  States  of 
America,”  and  his  title  shall  be,  ‘“His  Excellency.”  He  shall  be  elected  by  bal- 
lot l)y  the  legislature.  He  shall  hold  his  office  during  the  term  of  seven  years; 
but  shall  not  be  elected  a second  time. 

Sect.  2.  He  shall,  from  time  to  time,  give  information  to  the  legislature  of 


CONSTITUTIONAL  HISTORY. 


726 

the  state  of  the  Union.  He  may  recommend  to  their  consideration  such  meas- 
ures as  he  shall  judge  necessary  and  expedient.  He  may  convene  them  on 
extraordinary  occasions.  In  case  of  disagreement  between  the  two  Houses,  witli 
regard  to  the  time  of  adjournment,  he  may  adjourn  them  to  such  time  as  he 
thinks  proper.  He  shall  take  care  that  the  laws  of  the  United  States  be  duly 
and  faithfully  executed.  He  shall  commission  all  the  officers  of  the  United 
States;  and  shall  appoint  officers  in  all  cases  not  otherwise  provided  for  by  this 
Constitution.  He  shall  receive  ambassadors,  and  may  correspond  with  the  su- 
preme executives  of  the  several  states.  He  shall  have  power  to  grant  reprieves 
and  pardons,  but  his  pardon  shall  not  be  pleadable  in  bar  of  an  impeachment. 
He  shall  be  commander-in-chief  of  the  army  and  navy  of  tlie  United  States,  and 
of  the  militia  of  the  several  states.  He  shall,  at  stated  times,  receive  for  his  ser- 
vices a compensation,  which  shall  neither  be  increased  nor  diminished  during 
his  continuance  in  office.  Before  he  shall  enter  on  the  duties  of  his  depart- 
ment, he  shall  take  the  following  oath  or  affirmation,  “ I solemnly  swear 

(or  affirm)  that  I will  faithfully  execute  the  office  of  President  of  the  United 
States  of  America.”  He  shall  be  removed  from  his  office  on  impeachment  by 
the  House  of  Representatives,  and  conviction,  in  the  supreme  court,  of  treason, 
briberv,  or  corruption.  In  case  of  his  removal,  as  aforesaid,  death,  resigna- 
tion, or  disability  to  discharge  the  powers  and  duties  of  his  office,  the  Presi- 
dent of  the  Senate  shall  exercise  those  powers  and  duties  until  another  Presi- 
dent of  the  United  States  be  chosen,  or  until  the  disability  of  the  President  be 
removed. 

Art.  XI. Sect.  1.  The  judicial  power  of  the  United  States  shall  be  vested 

in  one  supreme  court,  and  in  such  inferior  courts  as  shall,  when  necessary,  from 
time  to  time,  be  constituted  by  the  legislature  of  the  United  States. 

Sect.  2.  The  judges  of  the  supreme  court,  and  of  the  inferior  courts,  shall 
hold  their  offices  during  good  behavior.  They  shall,  at  stated  times,  recei\e 
for  their  services  a compensation,  which  shall  not  be  diminished  duiing  their 
continuance  in  office. 

Sect.  3.  The  jurisdiction  of  the  supreme  court  shall  extend  to  all  cases  aiising 
under  laws  passed  by  the  legislature  of  the  United  States;  to  all  cases  affecting 
ambassadors,  other  public  ministers  and  consuls ; to  the  trial  of  impeachments  of 
officers  of  the  United  States  ; to  all  cases  of  admiralty  and  maritime  jurisdiction  ; 
to  controversies  between  two  or  more  states  (except  such  as  shall  regard  terri- 
tory or  jurisdiction) ; between  a state  and  citizens  of  another  state  ; between  citi- 
zens of  different  states;  and  between  a state,  or  the  citizens  thereof,  and  foreign 
states,  citizens,  or  subjects.  In  cases  of  impeachment,  cases  affecting  ambassadors, 
other  public  ministers  and  consuls,  and  those  in  which  a state  shall  be  party,  this 
jurisdiction  shall  be  original.  In  all  the  other  cases  before  mentioned,  it  shall 
be  appellate,  with  such  exceptions,  and  under  such  regulations,  as  the  legislature 
shall  make.  The  legislature  may  assign  any  part  of  the  jurisdiction  above  men- 
tioned (except  the  trial  of  the  President  of  the  United  States),  in  the  manner 
and  under  the  limitations  which  it  shall  think  proper,  to  such  inferior  courts  as 
it  shall  constitute  from  time  to  time. 


APPENDIX. 


Sect.  4.  The  trial  of  all  criminal  offences  (except  in  cases  ofimpeachincnt)  shall 
be  in  the  state  where  the}'  shall  be  committed;  and  sliall  be  by  jury. 

Sect.  5.  Judgment,  in  cases  of  impeachment,  shall  not  extend  further  than  to 
removal  from  office,  and  disqualitication  to  hold  and  enjoy  any  office  of  lionor, 
trust,  or  protit,  under  the  United  States.  But  tlie  party  convicted  shall  never- 
theless be  liable  and  subject  to  indictment,  trial,  judgment,  and  punishment,  ac- 
cording to  law. 

Art.  XII.— No  state  shall  coin  money;  nor  grant  letters  of  marque  and  reprisal; 
nor  enter  into  any  treaty,  alliance,  or  confederation  ; nor  grant  any  title  of  nobility. 

Art.  XIII. — No  state,  without  the  consent  of  the  legislature  of  the  United 
States,  shall  emit  bills  of  credit,  or  make  anything  but  specie  a tender  in  pay- 
ment of  debts  ; nor  lay  imposts  or  duties  on  imports ; nor  keep  troops  or  ships  of 
war  in  time  of  peace;  nor  enter  into  any  agreement  or  compact  with  another 
state,  or  with  any  foreign  power;  nor  engage  in  any  war,  unless  it  shall  be  actu- 
ally invaded  by  enemies,  or  the  danger  of  invasion  be  so  imminent  as  not  to  admit 
of  a delay  until  the  legislature  of  the  United  States  can  be  consulted. 

Art.  XIV. — Tlie  citizens  of  each  state  shall  be  entitled  to  all  privileges  and  im- 
munities of  citizens  in  the  several  states. 

Art.  XV. — Any  person  charged  with  treason,  felony,  or  high  misdemeanor  in 
any  state,  who  shall  fee  from  justice,  and  shall  be  found  in  any  other  state,  shall, 
on  demand  of  the  executive  power  of  the  state  from  which  he  lied,  be  delivered 
up  and  removed  to  the  state  having  jurisdiction  of  the  offence. 

Art.  XVI. — Full  faith  shall  be  given  in  eacli  state  to  the  acts  of  the  legisla- 
tures, and  to  the  records  and  judicial  proceedings  of  the  courts  and  magistrates, 
of  every  other  state. 

Art.  XVII. — New  states  lawfully  constituted  or  established  within  the  limits 
of  the  United  States  may  be  admitted,  by  the  legislature,  into  this  government ; 
but  to  such  admission  the  consent  of  two  thirds  of  the  members  present  in  each 
House  shall  be  necessary.  If  a new  state  shall  arise  within  the  limits  of  any  of 
the  present  states,  the  consent  of  the  legislatures  of  such  states  shall  be  also 
necessary  to  its  admission.  If  the  admission  be  consented  to,  the  new  states 
shall  be  admitted  on  the  same  terms  with  the  original  states.  But  the  legisla- 
ture may  make  conditions  with  the  new  states  concerning  the  public  debt  which 
shall  be  then  subsisting. 

Art.  XVIIL— The  United  States  shall  guarantee  to  each  state  a republican 
form  of  government ; and  shall  protect  each  state  against  foreign  invasions,  and, 
on  the  application  of  its  legislature,  against  domestic  violence. 

Art.  XIX. — On  the  application  of  the  legislatures  of  two  thirds  of  the  states 
in  the  Union,  for  an  amendment  of  this  Constitution,  the  legislature  of  the  United 
States  shall  call  a convention  for  that  purpose. 

Art.  XX.— The  members  of  the  legislatures,  and  the  executive  and  judicial 
officers  of  the  United  States,  and  of  the  several  states,  shall  be  bound  by  oath  to 
support  this  Constitution. 

Art.  XXL — The  ratification  of  the  conventions  of states  shall  be  suffi- 

cient for  organizing  this  Constitution. 


728 


CONSTITUTIONAL  HISTORY. 


Art.  XXII. — This  Constitution  shall  be  laid  before  the  United  States  in  Con- 
gress assembled,  for  their  approbation  ; and  it  is  the  opinion  of  this  Convention, 
that  it  should  be  afterwards  submitted  to  a convention  chosen  in  each  state, 
under  the  recommendation  of  its  legislature,  in  order  to  receive  tlie  ratification 
of  such  convention. 

Art.  XXIII. — To  introduce  this  government,  it  is  the  opinion  of  this  Conven- 
tion, that  each  assenting  convention  should  notify  its  assent  and  ratification  to 
the  United  States  in  Congress  assembled ; that  Congress,  after  receiving  the  as- 
sent and  ratification  of  the  conventions  of states,  should  appoint  and  publish 

a day,  as  early  as  may  be,  and  appoint  a place,  for  commencing  proceedings  under 
this  Constitution ; that,  after  such  publication,  the  legislatures  of  the  several 
states  should  elect  members  of  the  Senate,  and  direct  the  election  of  members  of 
the  House  of  Representatives ; and  that  the  members  of  the  legislature  should 
meet  at  the  time  and  place  assigned  by  Congress,  and  should,  as  soon  as  may  be 
after  their  meeting,  choose  the  President  of  the  United  States,  and  proceed  to 
execute  this  Constitution. 


CONSTITUTION 

OP 

THE  UNITED  STATES  OF  AMERICA* 

We  the  People  of  the  United  States,  in  order  to  form  a more  perfect  Union,  es- 
tablish Justice,  insure  domestic  Tranquillity,  provide  for  the  common  defence, 
promote  the  general  Welfare,  and  secure  the  Blessings  of  Liberty  to  ourselves 
and  our  Posterity,  do  ordain  and  establish  this  Constitution  for  the  United 
States  of  America. 

ARTICLE.  I. 

Section.  1.  All  legislative  Powers  herein  granted  shall  be  vested  in  a Con- 
gress of  the  United  States,  which  shall  consist  of  a Senate  and  House  of  Rep- 
resentatives. 

Section.  2.  ’The  House  of  Representatives  shall  be  composed  of  Members 
chosen  every  second  Year  by  the  People  of  the  several  States,  and  the  Electors 
in  each  State  shall  have  the  Qualifications  requisite  for  Electors  of  the  most 
numerous  Branch  of  the  State  Legislature. 

^No  Person  shall  be  a Representative  who  shall  not  have  attained  to  the  Age 
of  twenty  five  Years,  and  been  seven  Years  a Citizen  of  the  United  States,  and 

* This  copy  of  the  Constitution  has  been  compared  with  the  Rolls  in  the  De- 
])artment  of  State,  and  is  punctuated  and  otherwise  printed  in  exact  conformity 
therewith. 


APPENDIX.  '729 

wlio  sliall  not,  when  elected,  be  an  Inhabitant  of  that  State  in  wiiich  he  shall  he 
chosen. 

Miepresentatives  ami  direct  Taxes  shall  be  apportioned  among  the  several 
States  which  may  be  included  within  this  Union,  according  to  their  respective 
Numbers,  which  shall  be  determined  by  adding  to  the  whole  Number  of  free  Per- 
sons, including  those  bound  to  Service  for  a Term  of  Years,  and  excluding  In- 
dians not  taxed,  three  fifths  of  all  other  Persons.  The  actual  Enumeration  shall 
be  made  within  three  Years  after  the  first  Meeting  of  the  Congress  of  the  United 
States,  and  within  every  subsequent  Term  of  ten  Years,  in  such  Manner  as  they 
shall  by  Law  direct.  The  Number  of  Representatives  shall  not  exceed  one  for 
every  thirty  Thousand,  but  each  State  shall  have  at  Least  one  Representative ; 
and  until  such  enumeration  shall  be  made,  the  State  ot  New  Hampshire  shall  be 
entitled  to  chuse  three,  IVIassachusetts  eight,  Rhode-Islaud  and  Providence  Plan- 
tations one,  Connecticut  five,  New-York  six.  New  Jersey  four,  Pennsylvania  eight, 
Delaware  one,  Maryland  six,  Virginia  ten.  North  Carolina  five,  South  Carolina 
five,  and  Georgia  three. 

*When  vacancies  happen  in  the  Representation  from  any  State,  the  Executive 
Authority  thereof  shall  issue  Writs  of  Election  to  fill  such  Vacancies. 

*The  House  of  Representatives  shall  chuse  their  Speaker  and  other  Officers; 
and  shall  have  the  sole  Power  of  Impeachment. 

Section.  3.  'The  Senate  of  the  United  States  shall  be  composed  of  two  Sena- 
tors from  each  State,  chosen  by  the  Legislature  thereof,  for  six  Years;  and  each 
Senator  shall  have  one  Vote. 

immediately  after  they  shall  be  assembled  in  Consequence  of  the  first  Elec- 
tion, they  shall  be  divided  as  equally  as  may  be  into  three  Classes.  The  Seats 
of  the  Senators  of  the  first  Class  shall  be  vacated  at  the  Expiration  of  the  second 
Year,  of  the  second  Class  at  the  Expiration  of  the  fourth  Year,  and  of  the  third 
Class  at  the  Expiration  of  the  sixth  Year,  so  that  one-third  may  be  chosen  every 
second  Y'ear;  and  if  Vacancies  happen  by  Resignation,  or  otherwise,  during  the 
Recess  of  the  Legislature  of  any  State,  the  Executive  thereof  may  make  tempo- 
rary Appointments  until  the  next  Meeting  of  the  Legislature,  which  shall  then 
fill  such  Vacancies. 

^No  Person  shall  be  a Senator  who  shall  not  have  attained  to  the  Age  of  thirty 
Years,  and  been  nine  Years  a Citizen  of  the  United  States,  and  who  shall  not, 
when  elected,  be  an  Inhabitant  of  that  State  for  which  he  shall  be  chosen. 

*The  Vice  President  of  the  United  States  shall  be  President  of  the  Senate,  but 
shall  have  no  Vote,  unless  they  be  equally  divided. 

sThe  Senate  shall  chuse  their  other  Officers,  and  also  a President  pro  tempore, 
in  the  Absence  of  the  Vice  President,  or  when  he  shall  exercise  the  office  of  Presi- 
dent of  the  United  States. 

6The  Senate  shall  have  the  sole  Power  to  try  all  Impeachments.  When  sit- 
ting for  that  Purpose,  they  shall  be  on  Oath  or  Affirmation.  When  the  Presi- 
dent of  the  United  States  is  tried,  the  Chief  Justice  shall  preside:  And  no  Per- 
son shall  be  convicted  without  the  Concurrence  of  two  thirds  of  the  Members 
j)  resent. 


730 


CONSTITUTIONAL  HISTORY. 


’Judgment  in  Cases  of  Impeachment  shall  not  extend  farther  than  to  removal 
from  Office,  and  Disqualification  to  hold  and  enjoy  any  Office  of  honour,  Trust 
or  Profit  under  the  United  States:  but  the  Party  convicted  sliall  nevertheless  be 
liable  and  subject  to  Indictment,  Trial,  Judgment  and  Punishment,  according 
to  Law. 

Section.  4.  ^The  Times,  Places  and  Manner  of  liolding  Elections  for  Senators 
and  Representatives,  shall  be  prescribed  in  each  State  by  the  Legislature  thereof; 
but  the  Congress  may  at  any  time  by  Law  make  or  alter  such  Regulations,  except 
as  to  the  Places  of  chasing  Senators. 

^Tlie  Congress  shall  assemble  at  least  once  in  every  Year,  and  such  Meeting 
shall  be  on  the  first  Monday  in  December,  unless  they  shall  by  Law  appoint  a 
different  Day. 

Section.  5.  ’Each  House  shall  be  the  Judge  of  the  Elections,  Returns  and 
Qualifications  of  its  own  Members,  and  a Majority  of  each  shall  constitute  a 
Quorum  to  do  business;  but  a smaller  Number  may  adjourn  from  day  to  day, 
and  may  be  authorized  to  compel  the  Attendance  of  absent  Members,  in  such 
IManner,  and  under  such  Penalties  as  each  House  may  provide. 

’’Each  House  may  determine  the  Rules  of  its  Proceedings,  punish  its  j\Iem- 
bers  for  disorderly  Behaviour,  and,  with  the  Concurrence  of  two  thirds,  expel 
a Member. 

3Each  House  shall  keep  a Journal  of  its  Proceedings,  and  from  time  to  time 
publish  the  same,  excepting  such  Parts  as  may  in  their  Judgment  require  Se- 
crecy; and  the  Yeas  and  Nays  of  the  Meml)ers  of  either  House  on  any  question 
shall,  at  the  Desire  of  one  fifth  of  those  Present,  be  entered  on  the  Journal. 

^Neither  House,  during  the  Session  of  Congress,  shall,  without  the  Consent  of 
the  other,  adjourn  for  more  than  three  days,  nor  to  any  other  Place  than  that  in 
which  the  two  Houses  shall  be  sitting. 

Section.  6.  ’The  Senators  and  Representatives  shall  receive  a Compensation 
for  their  Services,  to  be  ascertained  by  Law,  and  paid  out  of  the  Treasury  of  tlie 
United  States.  They  shall  in  all  Cases,  except  Treason,  Felony  and  Breach  of  the 
Peace,  be  privileged  from  Arrest  during  their  Attendance  at  the  Session  of  their 
respective  Houses,  and  in  going  to  and  returning  from  the  same ; and  for  any 
Speech  or  Debate  in  either  House,  they  shall  not  be  questioned  in  any  other 
Place. 

^No  Senator  or  Representative  shall,  during  the  Time  for  which  he  was  elected, 
be  appointed  to  any  civil  Office  under  the  Authority  of  the  United  States,  which 
shall  have  been  created,  or  tlie  Emoluments  whereof  shall  have  been  encreased 
during  such  time;  and  no  Person  holding  any  Office  under  the  United  States, 
shall  be  a member  of  either  House  during  his  Continuance  in  Office. 

Section.  7.  ’All  Bills  for  raising  Revenue  shall  originate  in  the  House  of 
Representatives;  but  the  Senate  may  propose  or  concur  with  Amendments  as 
on  other  Bills. 

”Every  Bill  which  shall  have  passed  the  House  of  Representatives  and  the  Sen- 
ate, shall,  before  it  become  a Law,  be  presented  to  the  President  of  the  United 
States;  If  he  approve  he  shall  sign  it,  but  if  not  he  shall  return  it,  with  his  Ob- 


APPENDIX. 


i 

i o I 

jcctions  to  that  House  in  which  it  shall  have  originated,  who  shall  enter  the 
Ohjections  at  large  on  their  Journal,  and  proceed  to  reconsider  it.  If  after  such 
Ueconsideration  two  thirds  of  that  House  shall  agree  to  pass  the  Bill,  it  shall  be 
sent,  together  with  the  Objections,  to  the  other  House,  by  which  it  shall  likewise 
be  reconsidered,  and  if  approved  by  two  thirds  of  that  House,  it  shall  become  a 
Law.  But  in  all  such  Cases  the  Votes  of  both  Houses  shall  be  determined  by 
yeas  and  Nays,  and  the  Names  of  the  Persons  voting  for  and  against  the  Bill 
shall  be  entered  on  the  Journal  of  each  House  respectively.  If  any  Bill  shall 
not  be  returned  by  the  President  within  ten  Days  (Sundays  excepted)  after  it 
shall  have  been  presented  to  him,  the  Same  shall  be  a Law,  in  like  Manner  as  if 
he  had  signed  it,  unless  the  Congress  by  their  Adjournment  prevent  its  Return, 
in  which  Case  it  shall  not  be  a Law\ 

®Every  Order,  Resolution,  or  Vote  to  which  the  Concurrence  of  the  Senate  and 
House  of  Representatives  may  be  necessary  (except  on  a question  of  Adjourn- 
ment) shall  be  presented  to  the  President  of  the  United  States;  and  before  the 
same  shall  take  Effect,  shall  be  approved  by  him,  or  being  disapproved  by  him, 
shall  be  repassed  by  two  thirds  of  the  Senate  and  House  of  Representatives,  ac- 
cording to  the  Rules  and  Limitations  prescribed  in  the  Case  of  a Bill. 

Section.  8.  The  Congress  shall  have  Power  ^To  lay  and  collect  Taxes,  Du- 
ties, Imposts  and  Excises,  to  pay  the  Debts  and  provide  for  the  common  Defence 
and  general  Welfare  of  the  United  States;  but  all  Duties,  Imposts  and  Excises 
shall  be  uniform  throughout  the  United  States; 

^To  borrow  Money  on  the  credit  of  the  United  States ; 

®To  regulate  Commerce  with  foreign  Nations,  and  among  the  several  States, 
and  with  the  Indian  Tribes; 

■^To  establish  a uniform  Rule  of  Naturalization,  and  uniform  Law's  on  the  sub- 
ject of  Bankruptcies  througliout  the  United  States; 

®To  coin  Money,  regulate  the  Value  thereof,  and  of  foreign  Coin,  and  fix  the 
Standard  of  Weights  and  Measures; 

®To  provide  for  the  Punishment  of  counterfeiting  the  Securities  and  current 
Coin  of  the  United  States; 

■’To  establish  Post  Offices  and  post  Roads; 

^To  promote  the  Progress  of  Science  and  useful  Arts,  by  securing  for  limited 
Times  to  Authors  and  Inventors  the  exclusive  Right  to  their  respective  Writings 
and  Discoveries ; 

®To  constitute  Tribunals  inferior  to  the  supreme  Court ; 

^"To  define  and  punish  Piracies  and  Felonies  committed  on  the  high  Seas,  and 
Offences  against  the  Law  of  Nations; 

i^To  declare  War,  grant  Letters  of  Marque  and  Reprisal,  and  make  Rules  con- 
cerning Captures  on  Land  and  Water; 

^^To  raise  and  support  Armies,  but  no  Appropriation  of  Money  to  that  Use 
shall  be  for  a longer  Term  than  two  Years; 

’®To  provide  and  maintain  a Navy; 

'^To  make  Rules  for  the  Government  and  Regulation  of  the  land  and  naval 
Forces ; 


732 


CONSTITUTIONAL  HISTORY. 


’^To  provide  for  calling  forth  the  Militia  to  execute  the  Laws  of  the  Union, 
suppress  Insurrections  and  repel  Invasions; 

^®To  provide  for  organizing,  arming, and  disciplining,  the  Militia,  and  for  gov- 
erning such  Part  of  tiiem  as  may  be  employed  in  the  ^ervice  of  the  United 
States,  reserving  to  the  States  respectively,  the  Appointment  of  the  Officers,  and 
the  Authority  of  training  the  Militia  according  to  the  discipline  prescribed  by 
Congress ; 

’’To  exercise  exclusive  Legislation  in  all  Cases  whatsoever,  over  such  District 
(not  exceeding  ten  Miles  square)  as  may,  by  Cession  of  particular  States,  and  the 
Acceptance  of  Congress,  become  the  Seat  of  the  Government  of  the  United  States, 
and  to  exercise  like  Authority  over  all  Places  purchased  by  the  Consent  of  the 
Legislature  of  the  State  in  whicli  the  same  shall  be,  for  the  Erection  of  Forts, 
Magazines,  Arsenals,  Dock-Yards,  and  other  needful  Buildings; — And 

’®To  make  all  Laws  which  shall  be  necessary  and  proper  for  carrying  into  Ex- 
ecution the  foregoing  Powers,  and  all  other  Powers  vested  by  this  Constitution 
in  the  Government  of  the  United  States,  or  in  any  Department  or  Officer  thereof. 

Section.  9.  ’The  Migration  or  Importation  of  such  Persons  as  any  of  the 
States  now  existing  shall  think  proper  to  admit,  shall  not  be  prohibited  by  the 
Congress  prior  to  the  Year  one  thousand  eight  hundred  and  eight,  but  a Tax  or 
Duty  may  be  imposed  on  such  Importation,  not  exceeding  ten  dollars  for  each 
Person. 

^The  Privilege  of  the  Writ  of  Habeas  Corpus  shall  not  be  suspended,  unless 
when  in  Cases  of  Rebellion  or  Invasion  the  public  Safety  may  require  it. 

3No  Bill  of  Attainder  or  ex  post  facto  Law  shall  be  passed. 

^No  Capitation,  or  other  direct.  Tax  shall  be  laid,  unless  in  Proportion  to  the 
Census  or  Enumeration  herein  before  directed  to  be  taken. 

^No  Tax  or  Duty  shall  be  laid  on  Articles  exported  from  any  State. 

®No  Preference  shall  be  given  by  any  Regulation  of  Commerce  or  Revenue  to 
the  Ports  of  one  State  over  those  of  another:  nor  shall  Vessels  bound  to,  or  from, 
one  State,  be  obliged  to  enter,  clear,  or  pay  Duties  in  another. 

’No  Money  shall  be  drawn  from  the  Treasury,  but  in  consequence  of  Appropria- 
tions made  by  Law ; and  a regular  Statement  and  Account  of  the  Receipts  and 
Expenditures  of  all  public  Money  shall  be  published  from  time  to  time. 

«No  Title  of  Nobility  shall  be  granted  by  the  United  States:  And  no  Person 
holding  any  Office  of  Profit  or  Trust  under  them,  shall,  without  the  Consent  of 
the  Congress,  accept  of  any  present.  Emolument,  Office,  or  Title,  of  any  kind  what- 
ever, from  any  King,  Prince,  or  foreign  State. 

Section.  10.  ’No  State  shall  enter  into  any  Treaty,  Alliance,  or  Confedera- 
tion ; grant  Letters  of  Marque  and  Reprisal ; coin  Money;  emit  Bills  of  Credit; 
make  any  Thing  but  gold  and  silver  Coin  a Tender  in  Payment  of  Debts;  pass 
any  Bill  of  Attainder,  ex  post  fiicto  Law,  or  Law  impairing  the  Olfiigation  of  Con- 
tracts, or  grant  any  Title  of  Nobility. 

2No  State  shall,  without  the  Consent  of  the  Congress,  lay  any  Imposts  or  Du- 
ties on  Imports  or  Exports,  except  what  may  be  absolutely  necessary  for  executing 
it’s  inspection  Laws : and  the  net  Produce  of  all  Duties  and  Imposts,  laid  by  any 


APPENDIX. 


733 


State  on  Imports  or  Exports,  sliall  l)e  for  the  Use  of  tlie  Treasury  of  the  United 
States;  and  all  such  Laws  shall  he  subject  to  the  Revision  and  Controul  of  the 
Congress. 

3No  State  shall,  without  the  Consent  of  Congress,  lay  any  Duty  of  Tonnage, 
keep  Troops,  or  Ships  of  War  in  time  of  Peace,  enter  into  any  Agreement  or  Com- 
pact with  another  State,  or  with  a foreign  Power,  or  engage  in  War,  unless  actu- 
ally invaded,  or  in  such  imminent  Danger  as  will  not  admit  of  Delay. 

ARTICLE.  II. 

Section.  1.  'The  executive  Power  shall  be  vested  in  a President  of  the  United 
States  of  America.  He  shall  hold  his  Office  during  the  Term  of  four  Years,  and, 
together  with  the  Vice  President,  chosen  for  the  same  Term,  be  elected,  as  follows 

''Each  State  shall  appoint,  in  such  Manner  as  the  Legislature  thereof  may  di- 
rect, a Number  of  Electors,  equal  to  the  whole  Number  of  Senators  and  Repre- 
sentatives to  which  the  State  may  be  entitled  in  the  Congress : but  no  Senator 
or  Representative,  or  Person  holding  an  Office  of  Trust  or  Profit  under  the  United 
States,  shall  be  appointed  an  Elector. 

The  Electors  shall  meet  in  their  respective  States,  and  vote  by  Ballot  for  two 
Persons,  of  whom  one  at  least  shall  not  be  an  Inhabitant  of  the  same  State  with 
themselves.  And  they  shall  make  a List  of  all  the  Persons  voted  for,  and  of  the 
Number  of  Votes  for  each;  which  List  they  shall  sign  and  certify,  and  transmit 
sealed  to  the  Seat  of  the  Government  of  the  United  States,  directed  to  the  Presi- 
dent of  the  Senate.  The  President  of  the  Senate  shall,  in  the  Presence  of  the 
Senate  and  House  of  Representatives,  open  all  the  Certificates,  and  the  Votes 
shall  then  be  counted.  The  Person  having  the  greatest  Number  of  Votes  shall 
be  the  President,  if  such  Number  be  a Majority  of  the  whole  Number  of  Electors 
appointed;  and  if  there  be  more  than  one  who  have  such  Majority,  and  have  an 
equal  Number  of  Votes,  then  the  House  of  Representatives  shall  immediately 
chuse  by  Ballot  one  of  them  for  President;  and  if  no  Person  have  a Majority, 
then  from  the  five  highest  on  the  List  the  said  House  shall  in  like  Manner  chuse 
the  President.  But  in  chusing  the  President,  the  Votes  shall  be  taken  by  States, 
the  Representation  from  each  State  having  one  Vote;  A quorum  for  this  Pur- 
pose shall  consist  of  a Member  or  Members  from  twothirds  of  the  States,  and  a 
3Iajority  of  all  the  States  shall  be  necessary  to  a Choice.  In  every  Case,  after  the 
Choice  of  the  President,  the  Person  having  the  greatest  Number  of  Votes  of  the 
Electors  shall  be  the  Vice  President.  But  if  there  should  remain  two  or  more 
who  have  equal  Votes,  the  Senate  shall  chuse  from  them  by  Ballot  the  Vice 
President.* 

®The  Congress  may  determine  the  Time  of  chusing  the  Electors,  and  the  Day 
on  which  they  shall  give  their  Votes ; which  Day  shall  be  the  same  throughout 
the  United  States. 

*No  Person  except  a natural  born  Citizen,  or  a Citizen  of  the  United  States,  at 
the  time  of  the  Adoption  of  this  Constitution,  shall  be  eligible  to  the  Office  of 


Altered  by  the  12th  Amendment. 


CONSTITUTIONAL  HISTORY. 


734 

President ; neither  shall  any  Person  be  eligible  to  that  Office  who  shall  not  have 
attained  to  the  Age  of  thirty  five  Years,  and  been  fourteen  Years  a Resident 
within  the  United  States. 

Hn  Case  of  the  Removal  of  the  President  from  Office,  or  of  his  Death,  Resigna- 
tion, or  Inability  to  discharge  the  Powers  and  Duties  of  the  said  Office,  the  same 
shall  devolve  on  the  Vice  President,  and  the  Congress  may  by  Law  provide  for 
the  Case  of  Removal,  Death,  Resignation  or  Inability,  both  of  the  President  and 
Vice  President,  declaring  what  Officer  shall  then  act  as  President,  and  such 
Officer  shall  act  accordingly,  until  the  Disability  be  removed,  or  a President  shall 
be  elected. 

^The  President  shall,  at  stated  Times,  receive  for  his  Services,  a Compensation, 
which  shall  neither  be  encreased  nor  diminished  during  the  Period  for  which 
he  shall  have  been  elected,  and  he  shall  not  receive  within  that  Period  any  other 
Emolument  from  the  United  States,  or  any  of  them. 

■Before  he  enter  on  the  Execution  of  his  Office,  he  shall  take  the  following 
Oath  or  Affirmation  ; — 

“ I do  solemnly  swear  (or  affirm)  that  I will  faithfully  execute  the  Office  of 
“ President  of  the  United  States,  and  will  to  the  best  of  my  Ability,  preserve,  pro- 
“ tect  and  defend  the  Constitution  of  the  United  States.” 

Section.  2.  ^The  President  shall  be  Commander  in  Chief  of  the  Army  and 
Navy  of  the  United  States,  and  of  the  Militia  of  the  several  States,  when  called 
into  the  actual  Service  of  the  United  States  ; he  may  require  the  Opinion,  in  writ- 
ing, of  the  principal  Officer  in  each  of  the  executive  Departments,  upon  any  Sub- 
ject relating  to  the  Duties  of  their  respective  Offices,  and  he  shall  have  Power  to 
grant  Reprieves  and  Pardons  for  Offences  against  the  United  States,  except  in 
Cases  of  Impeachment. 

2He  shall  have  Power,  by  and  with  the  Advice  and  Consent  of  the  Senate,  to 
make  Treaties,  provided  two  thirds  of  the  Senators  present  concur;  and  he  shall 
nominate,  and  by  and  with  the  Advice  and  Consent  of  the  Senate,  shall  appoint 
Ambassadors,  other  public  Ministers  and  Consuls,  Judges  of  the  supreme  Court, 
and  all  other  Officers  of  the  United  States,  whose  Appointments  are  not  herein 
otherwise  provided  for,  and  which  shall  be  established  by  Law  ; but  the  Congress 
may  by  Law  vest  the  Appointment  of  such  inferior  Officers,  as  they  think  proper, 
in  the  President  alone,  in  the  Courts  of  Law,  or  in  the  Heads  of  Departments. 

^The  President  shall  have  Power  to  fill  up  all  Vacancies  that  may  happen 
during  the  Recess  of  the  Senate,  by  granting  Commissions  which  shall  expire  at 
the  End  of  their  next  Session. 

Section.  3.  He  shall  from  time  to  time  give  to  the  Congress  Information  of 
the  State  of  the  Union,  and  recommend  to  their  Consideration  such  Measures  as 
he  shall  judge  necessary  and  expedient ; he  may,  on  extraordinary  Occasions,  con- 
vene both  Houses,  or  either  of  them, and  in  Case  of  Disagreement  between  them, 
with  Respect  to  the  time  of  Adjournment,  he  may  adjourn  them  to  such  Time  as 
he  shall  think  proper;  he  shall  receive  Ambassadors  and  other  public  Ministers ; 
he  shiill  take  Ciire  that  the  Laws  be  faithfully  executed,  and  shall  Commission  all 
the  officers  of  the  United  States. 


APPENDIX. 


735 


Section.  4.  The  President,  Vice  President  and  all  civil  Officers  of  the  United 
States,  shall  be  removed  from  Office  on  Impeachment  for,  and  Conviction  of. 
Treason,  Bribery,  or  other  high  Crimes  and  Misdemeanors. 

ARTICLE.  III. 

Section.  1.  The  judicial  Power  of  the  United  States,  shall  be  vested  in  one 
supreme  Court,  and  in  such  inferior  Courts  as  the  Congress  may  from  time  to 
time  ordain  and  establish.  The  Judges,  both  of  the  supreme  and  inferior  Courts, 
shall  hold  their  Offices  during  good  Behavior,  and  shall,  at  stated  Times,  receive 
for  their  Services,  a Compensation,  which  shall  not  be  diminished  during  their 
Continuance  in  Office. 

Section.  2.  >The  judicial  Power  shall  extend  to  all  Cases,  in  Law  and  Equity, 
arising  under  this  Constitution,  the  Laws  of  the  United  States,  and  Treaties  made, 
or  which  shall  be  made,  under  their  Authority  to  all  Cases  affecting  Ambassa- 
dors, other  public  Ministers,  and  Consuls to  all  Cases  of  admiralty  and  maritime 
Jurisdiction; — to  Controversies  to  wliich  tlie  United  States  shall  be  a Party; — 
to  Controversies  between  two  or  more  States ; — between  a State  and  Citizens  of 
another  State ;— between  Citizens  of  different  States, — between  Citizens  of  the 
same  State  claiming  Lands  under  Grants  of  different  States,  and  between  a State, 
or  the  Citizens  thereof,  and  foreign  States,  Citizens  or  Subjects. 

^In  all  Cases  affecting  Ambassadors,  other  public  Ministers  and  Consuls,  and 
those  in  which  a State  shall  be  Party,  the  supreme  Court  shall  have  original 
Jurisdiction.  In  all  the  other  Cases  before  mentioned,  the  supreme  Court  shall 
have  appellate  Jurisdiction,  both  as  to  Law  and  Fact,  with  such  Exceptions,  and 
under  such  Regulations  as  the  Congress  shall  make. 

^The  Trial  of  all  Crimes,  except  in  Cases  of  Impeachment,  shall  be  by  Jury ; 
and  such  Trial  shall  be  held  in  the  State  where  the  said  Crimes  shall  have  been 
committed  ; but  when  not  committed  within  any  State,  the  Trial  shall  be  at  such 
Place  or  Places  as  the  Congress  may  by  Law  have  directed. 

Section.  3.  ^Treason  against  the  United  States,  shall  consist  only  in  levy- 
ing War  against  them,  or  in  adhering  to  their  Enemies,  giving  them  Aid  and 
Comfort.  No  Person  shall  be  convicted  of  Treason  unless  on  the  Testimony  of 
two  Witnesses  to  the  same  overt  Act,  or  on  Confession  in  open  Court. 

^The  Congress  shall  have  Power  to  declare  the  Punishment  of  Treason,  but 
no  Attainder  of  Treason  shall  work  Corruption  of  Blood,  or  Forfeiture  except 
during  the  Life  of  the  Person  attainted. 

ARTICLE.  IV.  . 

Section.  1.  Full  Faith  and  Credit  shall  be  given  in  each  State  to  the  public 
Acts,  Records,  and  judicial  Proceedings  of  every  other  State.  And  the  Congress 
may  by  general  Lav's  prescribe  the  Manner  in  which  such  Acts,  Records  and  Pro- 
ceedings shall  be  proved,  and  the  Effect  thereof. 

Section.  2.  ’The  Citizens  of  each  State  shall  be  entitled  to  all  Privileges 
and  Immunities  of  Citizens  in  the  several  States. 

-A  Person  charged  in  any  State  with  Treason,  Felony,  or  other  Crime,  who 


CONSTITUTIONAL  HISTORY. 


Y3G 

shall  flee  from  Justice,  and  be  found  in  another  State,  shall  on  Demand  of  the 
executive  Authority  of  the  State  from  which  he  fled,  be  delivered  up,  to  be  re- 
moved to  the  State  having  Jurisdiction  of  the  Crime. 

®No  Person  held  to  Service  or  Labour  in  one  State,  under  the  Laws  thereof, 
escaping  into  another,  shall,  in  Consequence  of  any  Law  or  Regulation  therein, 
be  discharged  from  such  Service  or  Labour,  but  shall  be  delivered  up  on  Claim  of 
the  Party  to  whom  such  Service  or  Labour  may  be  due. 

Section.  3.  ’New  States  may  be  admitted  by  the  Congress  into  this  Union  ; 
but  no  new  State  shall  be  formed  or  erected  within  the  Jurisdiction  of  any  other 
State  ; nor  any  State  be  formed  by  the  Junction  of  two  or  more  States,  or  Parts 
of  States,  without  the  Consent  of  the  Legislatures  of  the  States  concerned  as  well 
as  of  the  Congress. 

’’The  Congress  shall  have  Power  to  dispose  of  and  make  all  needful  Rules 
and  Regulations  respecting  the  Territory  or  other  Property  belonging  to  the 
United  States;  and  nothing  in  this  Constitution  shall  be  so  construed  as  to 
Prejudice  any  Claims  of  the  United  States,  or  of  any  particular  State. 

Section.  4.  The  United  States  shall  guarantee  to  every  State  in  this  Union 
a Republican  Form  of  Government,  and  shall  protect  each  of  them  against  Inva- 
sion ; and  on  Application  of  the  Legislature,  or  of  the  Executive  (when  the  Legis- 
lature cannot  be  convened)  against  domestic  Violence. 

ARTICLE.  V. 

The  Congress,  whenever  two  thirds  of  both  Houses  shall  deem  it  necessary, 
shall  propose  Amendments  to  this  Constitution,  or,  on  the  Application  of  the 
Legislatures  of  two  thirds  of  the  several  States,  shall  call  a Convention  for  pro- 
posing Amendments,  which,  in  either  Case,  shall  be  valid  to  all  Intents  and  Pur- 
poses, as  Part  of  this  Constitution,  when  ratified  by  the  Legislatures  of  three 
fourths  of  the  several  States,  or  by  Conventions  in  three  fourths  thereof,  as  the 
one  or  the  other  Mode  of  Ratification  may  be  proposed  by  the  Congress ; Pro- 
vided that  no  Amendment  which  may  be  made  prior  to  the  Year  one  thousand 
eight  hundred  and  eight  shall  in  any  Manner  affect  the  first  and  fourth  Clauses 
in  the  Ninth  Section  of  the  first  Article;  and  that  no  State,  without  its  Consent, 
shall  be  deprived  of  its  equal  Suffrage  in  the  Senate. 

ARTICLE.  VI. 

’All  Debts  contracted  and  Engagements  entered  into,  before  the  Adoption  of 
this  Constitution,  shall  be  as  valid  against  the  United  States  under  this  Consti- 
tution, as  under  the  Confederation. 

^This  Constitution,  and  the  Laws  of  the  United  States  which  shall  be  made 
in  Pursuance  thereof;  and  all  Treaties  made,  or  which  shall  be  made,  under  the 
Authority  of  the  United  States,  shall  be  the  supreme  Law  of  the  Land  ; and  the 
Judges  in  every  State  shall  be  bound  thereby,  any  Thing  in  the  Constitution  or 
Laws  of  any  State  to  the  Contrary  notwithstanding. 

3 The  Senators  and  Representatives  before  mentioned,  and  the  Members  of 
the  several  State  Legislatures,  and  all  executive  and  judicial  Officers,  both  of  the 


APPEN  DIX. 


737 


United  States  and  of  the  several  States,  sliall  be  bound  by  Oath  or  Affirmation, 
to  support  this  Constitution ; but  no  religious  Test  shall  ever  be  required  as  a 
Qimliliciition  to  any  Office  or  public  Trust  under  the  United  States. 

ARTICLE.  VII. 

The  Ratification  of  the  Conventions  of  nine  States,  shall  be  sufficient  for  the 
Establishment  of  this  Constitution  between  the  States  so  ratifying  the  Same. 
Done  in  Convention  by  the  Unanimous  Consent  of  the  States  present  the 
Seventeenth  Day  of  September  in  the  Year  of  our  Lord  one  thousand  seven 
hundred  and  Eighty  seven  and  of  the  Independance  of  the  United  States 
of  America  the  Twelfth  In  Witness  whereof  We  have  hereunto  sub- 
scribed our  Names, 

G?  WASHINGTON— 
Presidt  and  Deputy  from  Virginia 

NEW  HAMPSHIRE. 

John  Langdon,  Nicholas  Gilman. 

MASSACHUSETTS. 

Nathaniel  Gokham,  Rufus  King. 

CONNECTICUT. 

Wm.  Saml.  Johnson,  Roger  Sherman. 

NEW  YORK. 

Alexander  Hamilton. 


NEW  JERSEY. 

WiL : Livingston,  David  Brearley, 

Wm.  Paterson,  Jona.  Dayton. 


B.  Franklin, 

Robt.  Morris, 
Tnof.  Fitz  Simons, 
James  Wilson, 


PENNSYLVANIA. 

Thomas  Mifflin, 
Geo:  Clymer, 
Jared  Ingersoll, 
Gouv:  Morris. 


Geo  : Read, 
John  Dickinson, 
Jaco:  Broom. 

James  M'Henry, 
Danl.  Carroll. 

John  Blair, 

L— 47 


DELAWARE. 

Gunning  Bedford,  jun. 
Richard  Bassett. 

MARYLAND. 

Dan:  of  St.  Thos.  Jenifer, 

VIRGINIA. 

James  Madison,  Jr. 


738 


CONSTITUTIONAL  HISTORY. 


NORTH  CAROLINA. 

Wm.  Blount,  Rich’d  Dobbs  Spaight. 

Hu.  Williamson. 

SOUTH  CAROLINA. 

J.  Rutledge,  Charles  Cotesworth  Pinckney, 

Charles  Pinckney,  Pierce  Butler. 

GEORGIA. 

William  Few,  Abr.  Baldwin. 

WILLIAM  JACKSON, 


ARTICLES 

IN  ADDITION  TO,  AND  AMENDMENT  OF, 

THE  CONSTITUTION  OF  THE  UNITED  STATES 
OF  AMERICA. 

PROPOSED  BY  CONGRESS,  AND  RATIFIED  BY  THE  LEGISLATURES  OF  THE 
SEVERAL  STATES,  PURSUANT  TO  THE  FIFTH  ARTICLE  OF  THE  ORIGI- 
NAL CONSTITUTION. 

(ARTICLE  1.) 

Congress  shall  make  no  law  respecting  an  establishment  of  religion,  or  pro- 
hibiting the  free  exercise  thereof;  or  abridging  the  freedom  of  speech,  or  of  the 
press  ; or  the  right  of  the  people  peaceably  to  assemble,  and  to  petition  the  Gov- 
ernment for  a redress  of  grievances. 

(ARTICLE  2.) 

A well  regulated  Militia,  being  necessary  to  the  security  of  a free  State,  the 
right  of  the  people  to  keep  and  bear  Arms,  shall  not  be  infringed. 

(ARTICLE  HI.) 

No  Soldier  shall,  in  time  of  peace  be  quartered  in  any  house,  without  the  con- 
sent of  the  Owner,  nor  in  time  of  war,  but  in  a manner  to  be  prescribed  by  law. 

(ARTICLE  IV.) 

The  right  of  the  people  to  be  secure  in  their  persons,  houses,  papers,  and  ef- 
fects, against  unreasonable  searches  and  seizures,  shall  not  be  violated,  and  no 
Warrants  shall  issue,  but  upon  probable  cause,  supported  by  Oath  or  affirmation, 
and  particularly  describing  the  place  to  be  searched,  and  the  persons  or  things 
to  be  seized. 


APPENDIX. 


739 


(ARTICLE  V.) 

No  person  shall  be  held  to  answer  for  a capital,  or  otherwise  infamous  crime, 
unless  on  a presentment  or  indictment  of  a Grand  Jury,  except  in  cases  arising  in 
the  land  or  naval  forces,  or  in  the  Militia,  when  in  actual  service  in  time  of  War 
or  public  danger;  nor  shall  any  person  be  subject  for  the  same  olfence  to  be 
twice  put  in  jeopardy  of  life  or  limb;  nor  shall  be  compelled  in  any  Criminal 
Case  to  be  a witness  against  himself,  nor  be  deprived  of  life,  liberty,  or  property, 
without  due  process  of  law  ; nor  shall  private  property  be  taken  for  public  use, 
without  just  compensation. 

(ARTICLE  VI.) 

In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right  to  a speedy  and 
public  trial,  by  an  impartial  jury  of  the  State  and  district  wherein  the  crime 
shall  have  been  committed,  which  district  shall  have  been  previously  ascertained 
by  law,  and  to  be  informed  of  the  nature  and  cause  of  the  accusation  ; to  be  con- 
fronted with  the  witnesses  against  him ; to  have  Compulsory  process  for  obtain- 
ing Witnesses  in  his  favour,  and  to  have  the  Assistance  of  Counsel  for  his  de- 
fence. 

(ARTICLE  YII.) 

In  Suits  at  common  law,  where  the  value  in  controversy  shall  exceed  twenty 
dollars,  the  right  of  trial  by  jury  shall  be  preserved,  and  no  fact  tried  by  a jury, 
shall  be  otherwise  re-examined  in  any  Court  of  the  United  States,  than  accord- 
ing to  the  rules  of  the  common  law. 

(ARTICLE  VIII.) 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed,  nor  cruel 
and  unusual  punishments  inflicted. 

(ARTICLE  IX.) 

The  enumeration  in  the  Constitution,  of  certain  rights,  shall  not  be  construed 
to  deny  or  disparage  others  retained  by  the  people. 

(ARTICLE  X.) 

The  powers  not  delegated  to  the  United  States  by  the  Constitution,  nor 
prohibited  by  it  to  the  States,  are  reserved  to  the  States  respectively,  or  to  the 
people. 

ARTICLE  XI. 

The  Judicial  power  of  the  United  States  shall  not  be  construed  to  extend  to 
any  suit  in  law  or  equity,  commenced  or  prosecuted  against  one  of  the  United 
States  by  Citizens  of  another  State,  or  by  Citizens  or  Subjects  of  any  Foreign 
State. 

ARTICLE  XII. 

The  Electors  shall  meet  in  their  respective  states,  and  vote  by  ballot  for 
President  and  Vice  President,  one  of  whom,  at  least,  shall  not  be  an  inhabitant 
of  the  same  state  with  themselves;  they  shall  name  in  their  ballots  the  person 


740 


CONSTITUTIONx\L  HISTORY. 


voted  for  as  President,  and  in  distinct  bnllots  the  person  voted  for  as  Vice-Presi- 
dent,  and  tliey  siiall  make  distinct  lists  of  all  i)ersons  voted  for  as  President,  and 
of  all  persons  voted  for  as  Vice-President,  and  ot  the  nuini^er  ot  votes  for  each, 
which  lists  they  shall  sign  and  certify,  and  transmit  sealed  to  the  seat  of  the 
government  of  the  United  States,  directed  to  the  President  of  the  Senate;  The 
President  of  the  Senate  shall,  in  presence  of  the  Senate  and  House  of  Representa- 
tives, open  all  the  certificates  and  the  votes  shall  then  be  counted  The  person 
having  the  greatest  number  ot  votes  for  President,  shall  be  the  President,  it  such 
number  be  a maiority  of  tiie  whole  number  of  Ulectors  appointed  ; and  if  no  pei- 
son  have  such  majority,  then  from  the  persons  having  the  highest  numbers  not 
exceeding  three  on  the  list  of  those  voted  for  as  President,  the  House  of  Repre- 
sentatives shall  choose  immediately,  by  ballot,  the  President.  But  in  choosing 
the  President,  the  votes  shall  be  taken  by  states,  the  representation  from  each 
state  having  one  vote ; a quorum  for  this  purpose  shall  consist  of  a member  or 
members  from  two-thirds  of  the  states,  and  a majority  of  all  the  states  shall  be 
necessary  to  a choice.  And  if  the  House  of  Representatives  shall  not  choose  a 
President  whenever  the  right  of  choice  shall  devolve  upon  them,  before  the  fourth 
day  of  March  next  following,  tiien  the  Vice-President  shall  act  as  President,  as 
in  the  case  of  the  death  or  other  constitutional  disability  of  the  President. — The 
person  having  the  greatest  number  ot  votes  as  Vice-President,  shall  be  the  Vice- 
President,  if  such  numl)er  be  a majority  of  the  whole  number  of  Electors  ap- 
pointed, and  if  no  person  have  a majority,  then  from  the  two  highest  numbers 
on  the  list,  the  Senate  shall  choose  the  Vice-President ; a quorum  for  the  purpose 
shall  consist  of  two-thirds  of  the  wdiole  number  of  Senators,  and  a majority  of  the 
whole  number  shall  be  necessary  to  a choice.  But  no  person  constitutionally  in- 
eligible to  the  office  of  President  shall  be  eligible  to  that  of  Vice-President  of  the 
United  States. 


NOTE  ON  THE  ORDINANCE  OF  1787. 

By  permission  of  the  writer,  John  M.  Merriam,  Esq.,  I borrow^  the 
following  extract  from  an  elaborate  paper  prepared  by  him  and  pre- 
sented at  the  semi-annual  meeting  of  the  American  Antiquarian  Society 
in  VUorcester,  Mass.,  April  25th,  1888. 

The  mystery  surrounding  the  enactment  of  this  sixth  article  [excluding 
slavery]  is  explained,  perhaps  not  with  perfect  satisfaction,  by  the  publication  ot 
the  “Life,  Journal,  and  Correspondence  of  Manasseh  Cutler.”  Mr.  WiUiam  F. 
Poole,  of  Chicago,  first  called  attention  to  the  very  important  influence  exerted 
by  Cutler,  as  the  agent  of  the  Ohio  Company,  in  the  formation  and  passage  of 
both  the  “Ordinance  of  1787”  and  the  accompanying  ordinance  for  the  sale  of 
land  to  the  Ohio  Company.  The  recent  publication  of  Cutler’s  letters  and  diary 
has  made  it  still  clearer  that  the  Oliio  Company,  represented  in  New  York  by 
Cutler  when  the  subject  of  the  Northwest  Territory  was  at  last  considered  with 


APPENDIX. 


741 


energy,  was  the  power  which  clcmanclcd  ami  enforced  from  the  hitherto  unde- 
cided and  irresolute  Congress  an  ordinance  for  the  government  of  their  state  or 
states  which  would  secure  the  rights  of  property  and  of  person,  maintain  educa- 
tion and  religion,  and  irrevocably  prohibit  slavery. 

A few  passages  from  Cutler’s  ‘‘Life,  Journal,  and  Correspondence”  will  serve 
to  support  this  view. 

April  7th,  1783,  Timothy  Pickering  wrote  a letter  to  Mr.  Hodgdon,  in  which 
is  the  following  passage  : “ But  a new  plan  is  in  contemplation,  no  less  than  form- 
ing a new  state  westward  of  the  Ohio.  Some  of  the  principal  officers  of  the  army 
are  heartily  engaged  in  it.  About  a week  since  the  matter  was  set  on  foot  and 
a plan  is  digesting  for  the  purpose.  Enclosed  is  a rough  draft  of  some  proposi- 
tions respecting  it,  which  are  generally  approved  of.  They  are  in  the  hands 
of  General  Huntiugtou  and  General  Putnam,  for  consideration,  amendment,  and 
addition.”  ^ 

Here  are  three  of  the  articles  of  the  rough  draft  to  which  Pickering  referred  : 

“ 11.  That  a Constitution  for  the  new  state  be  formed  by  the  members  of  the 
association  previous  to  their  commencing  the  settlement,  two  thirds  of  the  asso- 
ciators  present  at  a meeting  duly  notified  for  that  purpose  agreeing  therein. 
The  total  exclusion  of  slavery  from  the  state  to  form  an  essential  and  irrevocable 
part  of  the  Constitution. 

“ (12).  That  the  associators,  so  assembled,  agree  on  such  general  rules  as 
they  shall  deem  necessary  for  the  prevention  and  punishment  of  crimes,  and  the 
preservation  of  peace  and  good  order  in  the  state;  to  have  the  force  of  laws  dur- 
ing the  space  of  two  years  unless  an  assembly  of  the  state,  formed  agreeably  to 
the  Constitution,  shall  sooner  repeal  tliem. 

“13.  That  the  state  so  constituted  shall  be  admitted  into  the  Confederacy  of 
the  United  States,  and  entitled  to  all  the  benefits  of  the  Union,  in  common  with 
the  other  members  thereof”  - 

April  14,  1783,  Colonel  Pickering  again  writes  to  Mr.  Hodgdon.  He  says, 
“General  Putnam  is  warmly  engaged  in  the  new-planned  settlement  on  the 
Ohio.”  3 

Later  a petition  signed  by  two  hundred  and  eighty-eight  officers  in  the  Con- 
tinental army  is  presented  to  Congress  praying  for  the  location  and  survey  of  the 
western  lands  promised  to  them  by  the  resolution  of  September  20,  1776.  Gen- 
eral Rufus  Putnam  is  the  first  signer  from  Massachusetts.  He  writes  a long  letter 
to  Washington  stating  the  terms  on  which  the  petitioners  propose  to  receive  the 
lands,  and  in  these  terms  are  liberal  provisions  for  the  support  of  the  ministry 
and  of  schools.  This  letter  is  submitted  to  Congress  with  the  petition. 

March  1st,  1786,  the  Ohio  Company  was  formed  in  Boston,  and  later  General 
Samuel  H.  Parsons,  General  Rufus  Putnam,  and  Rev.  Manasseh  Cutler  were 
chosen  the  three  directors. 

General  Parsons  made  an  unsuccessful  application  for  the  purchase  of  lands 
from  Congress,  after  which  the  Ohio  Company  resolved  to  attempt  to  make  “ a 


1 Vol.  I.  149. 


2 Ibid.,  158. 


3 Ibid.,  149. 


742 


CONSTITUTIONAL  HISTORY. 


private  purchase  of  lands  of  the  Honorable  Congress,”  and  Manasseh  Cutler  was 
autliorized  to  conduct  the  purchase. 

Before  starting  on  his  important  mission  lie  visits  Boston  and  consults  with 
Rufus  Putnam.  He  writes  of  their  interview;  “Conversed  with  General  Put- 
nam. Received  letters.  Settled  the  principles  on  which  I am  to  contract  with 
Congress  for  lands  on  account  of  the  Ohio  Company.”  ^ 

The  (lay  of  this  interview  was  June  25th,  1787.  On  the  following  day  Cutler 
started  for  Providence  on  his  way  to  New  York.  He  arrived  there  July  5th,  four 
days  before  the  appointment  of  the  final  committee  on  the  ordinance.  During 
this  time  he  was  very  diligent  presenting  letters  of  introduction  to  members  of 
Congress,  and  others,  and  pushing  his  propositions  in  regard  to  the  northwest 
lands.  His  greatest  friend  in  Congress  appears  to  have  been  Carrington  of  Vir- 
ginia, who  was  made  chairman  of  both  the  committee  on  the  frame  of  govern- 
ment and  the  committee  on  the  sale  of  lands. 

He  records  in  his  diary,  pp.  236,  237,  that  he  had  two  conferences  on  the  9th 
with  the  committee.  July  10th  he  states  that  he  had  another  conference  with 
the  committee  in  the  morning.  His  account  of  that  day  contains  this  signifi- 
cant paragraph  : “ As  Congress  was  now  engaged  in  settling  the  form  of  govern- 
ment for  the  federal  territory,  for  which  a bill  had  been  prepared,  and  a copy 
sent  to  me  with  leave  to  make  remarks  and  propose  amendments,  and  which  I 
had  taken  the  liberty  to  remark  upon,  and  to  propose  several  amendments,  I 
thought  this  the  most  favorable  opportunity  to  go  on  to  Philadelphia.  Accord- 
ingly, after  I had  returned  the  bill  with  my  observations  I set  out  at  seven 
o’clock  and  crossed  North  River  to  Paulus  Hook.”  ^ 

It  seems  probable  that  the  bill  which  had  been  prepared  and  a copy  of  which 
had  been  sent  to  Cutler,  and  to  which  he  had  proposed  amendments,  was  the 
ordinance  reported  by  Johnson  and  read  a second  time  on  May  9th,  inasmuch  as 
this  extract  shows  that  the  copy  with  Cutler’s  proposed  amendments  was  re- 
turned July  10th,  and  the  committee  which  drafted  the  final  ordinance  was  ap- 
pointed only  the  day  before.  Unless,  therefore,  the  committee  took  immediate 
action  on  the  day  of  their  appointment,  and  revised  the  work  of  the  former 
committee  sufficiently  to  offer  a complete  ordinance  to  Cutler,  he  must  have  re- 
ceived a copy  of  the  old  report  which  had  been  referred  to  Carrington’s  com- 
mittee. This  report  had,  as  has  already  been  stated,  passed  a second  reading, 
and  had  been  printed.  When  Cutler  had  returned  to  New  York  after  the  ordi- 
nance had  been  enacted,  he  was  provided  with  a copy  of  it,  as  the  following 
entry  in  his  diary  shows;  “July  19th,  Called  on  members  of  Congress  very  eai’ly 
this  morning.  Was  furnished  with  the  Ordinance  establishing  a government 
in  the  western  federal  territory.  It  is  in  a degree  new  modelled.  The  amend- 
ments I proposed  have  all  been  made  except  one,  and  that  is  better  qualified.” 

The  statement  that  “it  is  in  a degree  new  modelled”  seems  to  justify  the 
inference  that  comparison  was  made  with  the  bill  which  had  been  sent  to  Cut- 
ler, and  that  that  bill  was  the  ordinance  which  was  at  that  time  on  the  table  of 

Congress.  

‘ Vul.  I.,  204.  ^ Manasseh  Cutler,  Life,  Journal,  and  Correspondence,  I.  242. 


APPENDIX. 


743 


These  passajjcs  from  Cutler’s  diary  show  conclusively  that  he  went  to  New 
York  armed  with  great  power,  and  for  definite  purposes  which  had  been  dis- 
cussed and  agreed  upon  with  Rufus  Putnam  before  he  started.  The  i)recise 
articles  in  the  final  ordinance  which  were  due  to  the  foresight  and  wisdom  of 
Putnam  and  Cutler  cannot  now  be  precisely  pointed  out.  It  seems  probable, 
however,  in  view  of  the  earlier  stand  taken  by  Putnam  and  Pickering  and  their 
associates,  that  provisions  for  the  support  of  religion  and  education,  and  the 
prohibition  of  slavery,  were  among  the  terms  of  the  negotiation.  It  is  only 
upon  this  supposition  tliat  the  readiness  of  Congress  to  agree  upon  the  sixth 
article  can  be  explained. 


\ 


INDEX 


A. 

Acquisition,  national  spirit  of,  reflections 
on,  515. 

Adams,  John,  delegate  to  first  Conti- 
nental Congress,  8.  On  Washington’s 
appointment  as  commauder-in-chief, 
27.  One  of  the  committee  to  prepare 
Declaration  of  Independence,  35.  His 
account  of  the  Declaration,  57.  First 
minister  to  Great  Britain,  173.  An- 
swer to  his  complaints  about  the 
treaty,  173.  Instructed  to  negotiate 
treaty  with  the  Netherlands,  189. 
One  of  the  commissioners  to  iirocnre 
commercial  treaties,  193.  Views  of, 
respecting  taxation  of  slaves,  414. 
Practice  of,  respecting  cabinet,  576. 

Adams,  Samuel,  delegate  to  first  Con- 
tinental Congress,  8.  Reserve  of, 
respecting  Constitution,  651.  Di sap- 
appro  ves  of  Constitution,  651.  Char- 
acter of,  651.  Position  of,  in  conveu- 
tiou  of  Massachusetts,  651.  In  favor 
of  Hancock’s  amendments  to  Consti- 
tution, 654. 

Adams,  captain  in  the  Revolutionary 
naval  force,  51. 

Address  of  the  Colonies  to  the  people  of 
Great  Britain,  15. 

Admiralty  Jurisdiction,  criminal,  526.  Of 
courts  of  United  States,  599.  Under 
Confederation,  599. 

Adoption  of  Coustitntion,  mode  of,  rec- 
ommended, 555. 

Albany,  convention  of  colonies  at,  in 
1753-54,  4. 

Alexandria,  meeting  of  commissioners  at, 
from  Virginia  and  Maryland,  230. 

Alexandria  Commissioners,  visit  General 
Washington,  285.  Report  of,  received 
in  Virginia  legislature,  285. 


Aliens,  rights  to  he  conceded  to,  in  cer- 
tain treaties,  189.  See  Foreigners. 

Allegiance  of  people  of  the  colonies, 
transferred,  36. 

illiance.  See  Treaty  of  Alliance. 

Ambassadors,  proposed  appointment  of, 
by  Senate,  457,  577 ; by  president, 
465.  Received  by  president,  580.  To 
be  nominated  by  president,  581.  Ju- 
risdiction of  cases  afiectiug,  598. 

Amendment  of  Constitution,  364.  Pro- 
vision for,  adopted  withont  debate, 
426.  And  revolution,  distinction  be- 
tween, 613. 

Amendments  of  Constitution,  when  to  be 
proposed  by  Congress,  487.  How  to 
be  proposed  and  adopted,  613.  How 
ratitied,  616.  Power  to  make,  limit- 
ed, 616.  States  at  liberty  to  i)ropose, 
621.  Proposed  by  Hancock,  653 ; 
by  Massachusetts,  classified,  655 ; by 
South  Carolina,  660  ,•  by  Patrick 
Henry,  681;  by  Virginia,  682;  by 
New  York,  686,  687  ; by  North  Caro- 
lina, 692,  693.  Refused  in  Maryland 
convention,  657.  Proposed,  not  made 
conditions  of  adoption,  662. 

Amendments  of  Articles  of  Confederation, 
how  made,  364,  613,  618. 

America,  natural  advantages  of,  for  com- 
mercial pursuits,  513.  Variety  of  cli- 
mate and  products  of,  514. 

American  Constitutions,  character  of,  175. 

American  Feeling,  Washington’s  efforts 
to  create,  76. 

Amei'ican  People  perceive  the  insufficien- 
cy of  state  governments,  79.  Early 
familiarity  of,  with  the  principles  of 
government,  80.  Perceive  the  neces- 
sity of  a union,  84.  See  People  of 
America. 

American  Bevolution,  commencement  of, 


74:0 


INDEX. 


1.  Attempt  to  alter  charter  govern-  I 
merits,  a principal  cause  of,  3.  Found 
local  legislatures  in  all  the  colonies, 
4.  Fnndameutal  x^iii^ciple  estab- 
lished by,  256.  Object  and  effects  of, 
440,  Policy  which  led  to,  real  cause 
of,  467.  Effect  of,  on  views  of  people 
of  United  States,  relating  to  govern- 
ment, 467.  j 

Annapolis,  general  commercial  conven-  ■ 
tion  at,  219,  231,  234.  Recommends  j 
general  convention  to  revise  the  fed-  i 
eral  system,  234.  Recommendation, 
how  received,  237.  See  Hamilton 
and  Madison. 

Annapolis  Commissioners,  report  of,  acted 
n[)on  in  Congress,  240^^^^ 

Anti- Federalists,  plan  of,  to  postpone  ac- 
tion of  Virginia  on  Constitution,  673. 
See  Federalists. 

Appropriation  Bills,  provision  concern- 
ing, objected  to,  407.  See  Money  Bills  | 
and  Eevenue  Bills. 

Arms  of  the  United  States,  when  adopted, 
103. 

Armstrong,  John,  wrote  the  Newburgh 
Addresses,  112. 

Army,  power  of  Congress  to  raise  and 
support,  527.  Appropriation  of  money 
for  support  of,  528.  Power  of  Con- 
gress to  make  rules  for,  528.  Stand- 
ing, repugnant  to  American  feelings, 
529.  Not  to  be  kept  by  states  in  time 
of  peace,  552.  President  commander- 
in-chief  of,  578  Power  of  President 
to  employ,  579. 

Army  of  the  lievolution,  first  suggested, 
20.  How  first  raised,  21.  State  of, 
when  Washington  arrived  at  Cam- 
bridge, 38.  How  constituted,  40. 
Committee  of  Congress  sent  to  ex- 
amine, 41.  Short  enlistments  in,  how 
accounted  for,  42.  Discontents  in,  54,  ' 
106,  124.  History  of,  after  the  evacu- 
ation of  Boston,  63.  Reorganized,  64,  ‘ 
65.  Defects  in  organization  of,  65. 
Officers  of,  liow  appointed,  65  ; how  ; 
treated  in  1776,  66.  Bad  construction 
of,  66,  68.  Third  effort  of  Washing-  I 
ton  to  reorganize,  76.  Embarrass- 
ments and  difficulties  attending,  76, 
77.  State  of,  in  April,  1777,  77,  78  ; in 
May,  1782,  106. 

Arrest,  privilege  from,  483. 

Arsenals,  authority  of  Congress  over, 
532. 

Articles  of  Confederation,  713.  Reported 


in  Congress,  and  recommended  to  the 
states,  37,  72,  79.  Adoption  of,  by 
the  states,  86.  Amendments  to,  pro- 
posed by  the  states,  89;  by  New  Jer- 
sey, for  regulation  of  commerce,  89. 
Chief  obstacle  to  the  completion  of, 
90.  States  urged  to  accede  to,  93. 
Ratified  by  New  Jersey,  93  ; by  Dela- 
Avare,  93;  by  Maryland,  94.  Comple- 
tion of,  announced,  94.  Established 
by  patriotic  sacrifices,  95.  Outline  of, 
98.  Construction  of  third  article  of, 
178.  Amendment  of,  at  first  contem- 
plated, 323.  How  altered,  364,  427. 
Citizenship  under,  446.  Effort  to  in- 
clude in,  power  over  our  Avestern 
territory,  533.  Admission  of  new 
states  under,  535,  536.  On  what 
terms  ratified  by  smaller  states,  536. 
Restraints  imposed  on  states  by, 
547.  Inter-state  privileges  under, 
600.  Circular  letter  of  Congress, 
recommending  adoption  of,  699. 
Representation  of  Ncav  Jersey  re- 
specting, 700.  Act  of  New  Jersey 
accepting,  703.  Resolves  of  Dela- 
Avare  respecting,  704.  Action  of 
Maryland  on,  707 ; of  New  York  on, 
710. 

Assemblies  in  Provincial  goA^ernmeuts, 
how  constituted,  2. 

Assembling,  one  of  the  common-law 
rights,  15. 

Association,  drawn  up  by  House  of  Bur- 
gesses in  Virginia,  7 For  non-im- 
portation, etc.,  how  carried  out  by 
colonists,  15. 

Attainder,  Bills  of,  defined,  545.  Con- 
gress prohibited  to  pass,  545.  States 
prohibited  to  pass,  550. 

Attestation  to  Constitution,  form  of,  621. 

B. 

Baldavin,  Abraham,  model  of  Senate 
suggested  by,  401.  Vote  and  views 
of,  respecting  representation  in  Sen- 
ate, 403. 

Baltimore,  public  rejoicings  in,  in  honor 
of  Constitution,  657. 

Barnwell,  Robert,  in  favor  of  Consti- 
tution, 636.  Arguments  of,  in  con- 
Amntion  of  South  Carolina,  660. 

^ Bill  of  Rights,  Avant  of,  a strong  argu- 
ment Avith  some  against  Constitution, 
628.  James  Wilson’s  views  respect- 
ing,  6^3.  States  ecpially  divided  on 
question  of,  in  Convention,  644.  Con- 


I N I)  E X. 


747 


sideied  essential  by  Patrick  Henry, 
()G4.  Proposed  by  Virginia,  ()8*2. 

Jiills  of  Credit,  power  to  emit,  prohibit- 
ed to  states,  524,  548.  Meaning  of, 

525.  i 

Jiostoii,  oeenpied  by  royal  troops  in 

1774-75,  17.  Invested  by  army  under 
General  Ward,  in  1775,  21.  Recep- 
tion of  Constitution  by  people  of, 
f)30.  Rejoicings  in,  in  honor  of  Con- 
stitution, 655. 

Jiouudary,  Southern,  tixed  by  the  Treaty 
of  Peace,  210.  Questions  of,  proposed 
to  be  determined  by  Senate,  458,  463  ; 
plan  respecting,  465.  Determination 
of,  a judicial  question,  464.  See  if'est- 
ern  Territory,  Lands,  and  Xorthwestern 
Territory.  \ 

Bounties  otfered  for  enlistment  in  1776, 
64.  Additional,  ottered  by  states,  66  : 
effect  of,  76.  j 

Bovvdoin,  James,  delegate  to  first 
Continental  Congress,  8.  Governor 
of  Massachusetts,  181.  Suppresses 
Shays’s  rebellion,  182.  Message  of, 
suggesting  a general  convention, 
226. 

Brandywine,  battle  of  the,  force  engaged 
in,  78. 

Bribery,  by  executive,  dangers  of,  470. 

British  Colonies,  legislatures  of,  divided 
into  two  branches,  396. 

Broughton,  Nicholas,  commander  of 
the  “ Hannah,”  51.  I 

Butler,  Pierce,  in  favor  of  the  Consti-  : 
tution,  636. 

C. 

Cabinet,  functions  of,  575.  Views  re- 
specting, in  Convention,  575.  Presi- 
dent may  require  opinions  of,  575.  ^ 
Constitutional  character  of,  576.  | 
Practice  of  first  three  presidents  re- 
specting, 576. 

Captures,  power  of  Congress  to  regulate,  ! 

526. 

Capitation  Tax,  report  of  committee  of 
detail  respecting,  501.  Provision  re- 
specting, adopted,  510. 

Carroll,  Charles,  ])roposition  of,  for 
asserting  right  of  United  States  to 
vacant  lands,  541,  542. 

Cases  arising  under  Constitution,  etc.,  j 
meaning  of,  590.  j 

Census,  periodical,  proposed  by  William-  ' 
sou  of  North  Carolina,  410.  ^"ote  re-  | 
specting,  410.  See  Federal  Census. 


Cessions  of  N<u  th western  4’ei  ritoi-y,  533. 
Of  laml  by  states  to  the  United  States, 
543.  See  U'eslern  and  Xorlli western 
Territory. 

Charleston,  rejoicings  in,  on  adoi)tion  of 
Constitut  ion,  660. 

Charter,  of  William  and  Mary  to  Massa- 
chu.setts,  3;  attempt  to  alter,  3.  In- 
violability of,  15.  How  distinguished 
from  Constitution,  318. 

Charter  Governments,  form  and  character 
of,  2. 

Chase,  Samuel,  views  of,  respecting 
taxation  of  slaves,  414. 

Checks  of  one  department  on  another, 
508. 

Citizenship,  as  qualitication  of  national 
officers,  433,  434,  444 ; of  senators, 
457,  458.  State  rules  respecting,  un- 
like, 442.  General  privileges  of,  under 
Confederation,  446,  601 ; umler  Con- 
stitution, 601.  See  Xaturalization. 

Clarke,  George  Rogers,  General,  pro- 
ceedings of,  in  Kentucky,  217. 

Clinton,  George,  message  of,  as  Gov- 
ernor of  New  York,  on  revenue  system 
of  1783,  243.  Head  of  party  in  New 
York  opposed  to  Constitution,  631. 

Coinage  of  the  United  States,  origin  of, 
297. 

CoiT,  captain  in  the  Revolutionary  na- 
val force,  51. 

CoZoHics,  thirteen  English,  1.  Ante-Rev- 
olutionary governments  of,  1.  Form 
a union,  1.  No  union  of,  before  Rev- 
olution, 4.  Common  grievances  of,  5. 
People  of,  how  descended,  5.  Rights 
of,  how  to  be  determined,  10;  when 
and  how  stated,  12 ; declaration  of, 
14;  what  included  in,  14  ; how  to  be 
enforced,  15.  Trade  of,  how  far  right 
to  regulate  in  Parliament,  13.  Re- 
duction of,  to  submission,  great  prep- 
arations for,  24,  25.  Trade  with,  pro- 
hibited by  Parliament,  December, 
1775,  24.  Change  of,  into  states,  80, 
Constitutional  power  of,  428. 

Commerce,  of  tlie  United  States,  186; 
capacity  of,  at  the  close  of  the  war, 
192.  Regulation  of,  a leading  object 
of  Constitutional  Convention,  321; 
became  an  exigency  of  the  Union, 
321 ; how  provide<l  for,  by  Virginia 
plan,  368;  if  universal,  must  include 
slave-trade,  498  ; report  of  committee 
of  detail  respecting,  501  ; generally 
conceded  to  general  government  as 


748 


INDEX. 


necessary,  501  ; views  of  Sontlierii 
statesmen  respectinj^,  501  ; by  Con- 
gress, Ixmefieial  to  North  and  South, 
501,  502;  a [tower  conceded  by  South 
to  North,  502 ; indivisible,  552  ; reluc- 
tance of  South  Carolina  to  concede, 
659.  Want  of  power  over,  in  Con- 
federation, 494.  Interest  of,  in  differ- 
ent states,  not  identical,  502,  506. 
Powers  of  government  ovei‘,  iutiuence 
of,  515.  Necessities  of,  basis  of  Con- 
stitution, 515.  See  Retjulation  of  Com- 
merce. 

Commercial  Convention.  See  Annapolis 
and  Virginia. 

Commercial  Fower  asked  for  by  Con- 
gress, 192.  Action  of  the  states  re- 
specting, 192,  193. 

Commercial  Treaties^  want  of,  dis[)layed, 
186.  Existing  at  the  peace,  188. 
How  far  the  Confederation  compe- 
tent to  make,  188.  Why  not  made 
with  England,  190.  Congress  en- 
deavors to  get  power  to  make,  192. 
Attempt  to  negotiate  without  power, 
193.  States  refuse  the  [lower  to 
make,  193,  194.  Fruitless  eff’orts  of 
the  commissioners  to  negotiate,  194. 

Commission.  See  Commercial  Treaties 
and  John  Adams. 

Committee  of  Congress  cent  to  confer  with 
Washington,  41,  65. 

Committee  of  the  States  under  the  Con- 
federation, 100. 

Committees  of  Correspondence  recommend- 
ed by  Virginia,  7.  Agency  of,  8. 

Common  Law,  one  of  the  rights  of  the 
colonies,  14.  And  equity,  distinction 
between,  preserved  by  Constitution, 
586.  Basis  of  state  jurisprudence, 
586. 

Commntation.  See  Half-Pag. 

Compromises  between  national  and  fed- 
eral systems,  377,  378.  Lie  at  the  basis 
of  the  Constitution,  394,  395.  Respect- 
ing formation  of  Congress,  402, 405, 406, 
419,439;  representation  in  Congress, 
406.  Respecting  slavery,  416;  how 
to  be  effected,  417;  retlections  on, 
511.  Respecting  Senate,  as  affected  by 
money  bills,  453;  choice  of  executive, 
455.  How  to  be  studied,  456.  Com- 
mittee of,  [imposed  by  Gouvernenr 
Morris,  508.  Res[»ecting  slave-trade 
and  navigation  act,  509  ; if  not  made, 
necessary  consequences,  517. 

Confederation,  office  of,  in  American  his- 


tory, 96,  102.  Revenues  of,  101.  De- 
fects of,  101,  102, 104,  320,  322,  323,  334, 
351,  361,  556.  Restraints  imposed  by, 
upon  the  states,  102.  Legal  com- 
mencement of,  102.  O[ieration  of,  to 
the  close  of  the  war,  121.  Power  of, 
to  maintain  an  army  and  navy  in 
peace,  145.  Analyzed  by  Hamilton, 
150.  Principle  of,  adhered  to,  152. 
Summary  of  its  o[)erations,  154.  In- 
ca[>acity  of,  to  [irotect  the  state  gov- 
ernments, 175.  Had  no  strict  power 
to  hold  or  manage  [)ublic  lauds,  196. 
Decay  and  failure  of,  221,  320.  Fatal 
defect  in  the  [ninci[»le  of  the,  251. 
Nature  of,  323.  Had  no  power  of 
compulsion,  323,  556.  Powers  of, 
330.  Rule  of  suffrage  under,  340 
Had  no  executive  or  judiciary,  351. 
Laws  of,  to  be  executed  by  state 
tribunals,  351.  Compared  Avith  Con- 
stitution, 369.  Articles  of,  framed 
in  1776,  414.  Assessments  on  states 
under,  415.  Still  in  force  Avhile  Con- 
vention in  session,  427.  Relation 
of,  to  states,  428.  States  op[)osed  to 
entering,  except  on  full  federal  equal- 
ity, 460.  Had  no  seat  of  government, 
487.  Want  of  power  in,  over  com- 
merce, 494  ; over  revenues,  494.  En- 
gagements of,  proposal  to  assume, 
520.  Want  of  power  in,  to  admit 
new  states,  533.  Rule  of,  respecting 
making  of  treaties,  556,  581,  596. 
Nature  and  objects  of,  600.  How 
amended,  613.  Chief  cause  of  failure 
of,  676.  See  Articles  of  Confederation 
and  Congress. 

Confiscations,  [)rovided  against,  by  the 
Treaty  of  Peace,  169.  Strict  right  of, 
belonged  to  the  Union,  170. 

Congress  of  the  Revolution,  lea\^es  Phila- 
delphia after  the  battle  of  the  Bran- 
dywine, 78;  assembles  at  Lancaster 
and  Yorktowu,  78.  Of  the  Confeder- 
ation, first  meeting  of,  86;  structure 
and  form  of,  99,  397,  459  ; [U)Avers  ol, 
99;  restrictions  on  [)ower8  of.  101; 
attendance  diminished  after  the 
peace,  125;  driven  from  Philadel[>liia 
by  a mutiny,  148;  decline  of,  1.53; 
meeting  of,  in  1783,  158;  thiidy  at- 
tended, 158;  ap[)ointment  and  attend- 
ance of  delegates,  160,  161  ; [)er[)ctu- 
ally  in  session,  ICO  ; [)ublic  objects  to 
be  accomplished  by,  162 ; condition 
of,  ill  1785,  228  ; unlitted  to  revise  the 


INDEX. 


740 


federal  system,  247 ; had  but  one 
cliamber,  31)7  ; resolution  for  continn- 
ance  of,  42(5 ; method  of  voting-  in, 
4(50 ; nienibers  of,  chosen  annmilly, 
and  liable  to  recall,  4(59 ; appoint- 
ment of  ortieers  by,  complaints  re- 
specting, 474  ; met  where,  487  ; pres- 
ence of,  in  New  York,  benefits 
resulting  from,  490 ; attempts  of,  to 
procure  cessions  from  states,  5533 ; 
resolve  of,  for  regulation  of  north- 
western territory,  533 ; power  of,  to 
admit  new  states,  535 ; transmission 
of  Constitution  to,  622;  action  of,  on 
Constitution,  (329.  Old,  antliority  of, 
continued  till  new  adopted,  365.  Un- 
der Virginia  plan,  to  have  two  houses, 
376.  Under  New  Jersey  jdan,  to  be 
one  body,  376.  Present  constitution 
of,  by  whom  first  suggested,  400; 
compromise  respecting,  402,  419. 

Power  of,  to  legislate  for  general  in- 
terests of  Union,  422;  to  negative 
state  laws,  422 ; respecting  elections 
to,  479;  in  general,  494;  over  taxes, 
duties,  etc.,  518;  to  pay  debts  of 
United  States,  518 ; to  provide  fqr 
common  defence,  etc.,  518 ; over 
places  purchased  for  forts,  etc.,  532 ; 
over  territories,  different  views  con- 
cerning, 5532,  542 ; limited,  532 ; over 
soil  of  national  domain,  539 ; pro- 
posed, over  property  of  United  States, 
542  ; restraints  on,  544 ; to  establish 
inferior  tribunals,  585,  587.  Acts  of, 
supreme  law,  422 ; how  passed,  484. 
Proposal  that  executive  be  chosen  by, 
422.  Members  of,  qualifications  of, 
439 ; ineligibility  of,  to  office,  475 ; 
time,  etc.,  of  electing,  left  to  states, 
479 ; pay  of,  proceedings  in  Conven- 
tion respecting,  480 ; objections  to 
states  payilig,  481 ; privileged  from 
arrest,  483 ; punishment  and  expul- 
sion of,  483;  not  to  be  questioned 
elsewhere  for  speech  or  debate,  483. 
Importance  of  early  legislation  of, 
448.  Proposed  to  be  modelled  after 
Congress  of  Confederation,  459.  Ad- 
mission of  members  of  cabinet,  etc., 
to,  question  respecting,  477.  Pkach 
house  of,  to  be  judge  of  elections,  etc., 
of  its  own  members,  483 ; to  deter- 
mine its  own  rule  of  proceeding,  483  ; 
to  keep  journal,  483.  Adjournment 
of,  491,  583.  lixclusive  sovereign  of 
District  of  Columbia,  492.  Time  of 


meeting  of,  49.3.  To  make  all  tieces- 
sary  and  ])ropcr  laws  for  exeention  of 
l>owers,  5531.  To  declare  war,  578. 
To  authoi-ize  calling  out  of  militia, 
579.  Special  relations  of  president 
to,  582.  To  prescribe  mode  of  proof 
and  effect  of  state  records,  etc.,  601. 
To  propose  amendments  to  Constitu- 
tion, 616.  To  call  Convention  to 
amend  Constitution,  when,  616. 

Connecticut,  a charter  government,  3. 
Governor,  council,  and  representa- 
tives always  chosen  by  the  people, 
53.  Cedes  claims  to  western  territory, 
202,  534.  Appoints  and  instructs  del- 
egates to  the  Convention,  249.  Op- 
posed to  Convention,  328 ; to  exec- 
utive holding  office  during  “ good 
behavior,”  424 ; to  property  qualifi- 
cation for  office,  434 ; to  nine  years’ 
citizenship  as  qualification  of  sena- 
tor, 458 ; to  taxing  exports,  505 ; to 
restricting  president  to  stated  sala- 
ry, 574.  In  favor  of  equality  of  suf- 
frage in  both  branches  of  Congress, 
390,  400 ; of  equal  representation  of 
states  in  Senate,  403,  407,  418  ; of  cen- 
sus of  free  inhabitants,  410;  of  refer- 
ring Constitution  to  state  legislatures, 
4531  ; of  each  state  having  one  vote  in 
Senate,  460.  Had  five  representatives 
in  first  House,  408.  Vote  of,  respect- 
ing citizenship  as  qualification  for  of- 
fice, 448;  respecting  mone}^  bills,  453, 
454;  respecting  eligibility  of  mem- 
bers of  Congress  to  office,  476;  re- 
specting slave  - trade,  511.  Ratifica- 
tion of  Constitution  by,  639.  Conven- 
tion of,  647 ; debates  in,  mostly  lost, 
648. 

Connectient  liCservation,  note  on,  202. 

Constitution,  how  framed,  316.  Means 
of  peaceful  coercion  a leading  object 
of,  353.  An  abridgment  of  state  pow- 
ers in  some  respects,  556.  Republican 
government  guaranteed  to  states  by, 
361,  363,  607,  610.  Capacity  of,  of 
amendment,  5364.  Why  submitted  to 
people.for  ratification,  364.  As  report- 
ed to  Convention,  365, 366.  Different 
plans  of,  proposed  in  Convention,  368. 
Compared  with  Confederation,  369. 
Compromise  of,  between  national  and 
federal  system,  5378.  Based  on  com- 
promises, 394.  Possibility  of  failure 
to  create,  reflections  on,  403.  Fram- 
ers of,  problem  before,  412 ; position 


750 


INDEX. 


and  purposes  of,  427 ; had  been  ob- 
servers of  Parliamentary  corruption, 
470.  Slate  and  national  officers  sworn 
to  support,  427,  5o5.  Ratification  of, 
427.  Dissatisfaction  with,  in  differ- 
ent stages,  429,  480.  How  differs  from 
league,  431.  Proposal  to  submit,  to 
Congress  of  Confederation,  432. 
Growth  of,  important  to  be  pursued 
through  entire  proceedings,  438.  Di- 
vided into  twenty-three  articles  by 
committee’s  report,  438.  Interest  in 
Europe  respecting,  440.  Should  de- 
fine eligibility  to  national  offices,  442. 
Purposes  of,  respecting  immigrants, 
448.  Analogy  of,  to  British  Constitu- 
tion, 452.  Provisions  of,  as  originally 
proposed,  462.  Benefits  of,  to  North 
and  South,  509.  Conception  of,  grad- 
ually attained,  514.  Hopes  of  fram- 
ers of,  exceeded,  515.  Sprung  from 
necessities  of  commerce,  515.  Objec- 
tions to,  of  favoring  slavery,  super- 
ficial, 516;  proper  mode  of  judging, 

516.  Rights  guaranteed  to  states  by, 

517.  Beneficent  operation  of,  ou  con- 
dition of  slaves,  517.  Provision  of, 
respecting  )»ower  of  Congress  over 
territories,  542;  purpose  of,  542;  ex- 
planation of,  543.  Adoption  of,  553. 
Preamble  to,  553.  Supreme  law,  554. 
Binding  on  all  judicial  officers,  554. 
Complex  character  of,  557.  Work- 
ings of,  not  impaired  by  territorial 
growth,  559.  Success  of,  when  other 
systems  had  failed,  cause  of,  560. 
Proposed  by  Governor  Randolph,  577. 
Cases  arising  under,  meaning  of,  590. 
Confers  few  special  powers  on  general 
government,  591.  Restrictions  laid 
on  states  by,  591.  Powers  of  national 
and  state  governments  determined  by, 
592.  Designed  to  form  a more  perfect 
union,  601.  Inter-state  privileges  un- 
der, 601.  Amendments  of,  how  pro- 
posed and  adopted,  613.  Oath  to  sup- 
port, by  whom  to  be  taken,  617. 
Religions  test  never  to  be  required 
under,  617.  Serious  questions  re- 
specting mode  of  establishing,  617. 
Effect  of  ratification  of,  by  only  part 
of  states,  621.  Formal  assent  of  states 
to,  in  Convention,  621.  Form  of  at- 
testation to,  621.  Refusal  of  thri'c 
delegates  to  sign,  621.  Presentation 
of,  to  Congress,  622.  Probable  con- 
sequences of  rejection  of,  622.  Issue 


presented  by,  to  people  of  United 
States,  622.  Attempt  to  introduce 
monarch  averted  by,  625.  Published 
September  19th,  1787,  626.  Reception 
of,  among  the  [ieoi»le,  626.  Friends 
and  opponents  of,  classified,  626. 
Advocates  of,  why  styled  Federalists, 
627.  Adopted  by  intelligent  majority 
in  each  state,  629.  Reception  of,  by 
Congress,  629.  Attempt  in  Congress 
to  arrest  or  alter,  629.  Real  crisis  of, 

639.  General  and  special  opposition 
to, 639.  People  redisposed  to  adopt, 

640.  First  ratified  by  Delaware,  641. 
Right  of  peojile  to  change  at  jileas- 
ure,  643.  Bestows  only  a jiart  of 
X)ower  of  jieople,  643.  Ratification  of, 
rejoicings  in  honor  of,  655.  Anxiety  re- 
specting state  action  011,658.  Amend- 
ments of,  jiroposed  by  South  Carolina, 
660.  Oi)i)osition  to,  in  New  York, 
676.  Adoption  of,  an  event  unparal- 
leled ill  history,  684.  Opponents  of, 
concessions  to,  justified,  688. 

Constitutions,  written,  how  far  existed 
before  the  Revolution,  2,  3.  Of  the 
states,  origin  and  character  of,  175. 

Constitutional  Convention,  first  suggestion 
of,  138.  First  suggested  by  Massachn- 
setts,  226.  Suggestion  of  Massachu- 
setts resxiecting,  not  adopted,  227 ; 
withdrawn,  228;  objections  of  her 
delegates  in  Congress  to,  228.  Recom- 
mended by  the  Annapolis  Commission- 
ers, 235  ; by  Congress,  244.  Urged  by 
various  public  bodies,  236.  Early  rec- 
ommendations of,  236.  Considered 
and  adopted  by  Congress,  240,  242. 
Powers  of,  not  strictly  defined,  248. 
Difficulties  of  its  position,  249.  Opin- 
ions of  leading  statesmen  lespecting, 

252,  253.  Assembles  at  Philadelphia, 

253.  Novelty  and  xiecnliarity  of  its 
task,  253.  Great  object  of,  316.  Mem- 
bers of,  character  of,  324;  different 
views  of,  324  ; greatness  of,  404.  Au- 
thority and  powers  of,  uncertain,  324. 
All  states  but  Rhode  Island  represent- 
ed in,  328.  Presence  of  all  states  in, 
not  required,  329.  Had  no  power  to 
enact  or  establish,  331.  Character  of, 
331.  Proceedings  of,  liow  to  be  stud- 
ied, 332;  secrecy  of,  623;  singular 
rumors  respecting,  623.  Supposed 
want  of  authority  in,  to  ])ropose  fun- 
damental changes,  369.  Struggle  in, 
respecting  form  of  Constitution,  394. 


INDEX. 


751 


Report  of  committee  of  the  whole 
made  to,  June  19th,  395.  Disruption 
of,  iinminent  iit  one  time,  403.  Pos- 
sible consecpiences  of  failure  of,  403. 
Resolution  lecommending,  43*2.  In- 
structions of  delegates  to,  432.  Causes 
of  success  of,  (315.  A second,  inexpe- 
dient, C15,  687.  Dissolved  September 
14tl),  1787,  623.  List  of  members  of, 
719. 

Constitutional  Law,  American,  originates 
in  The  Federalist,  280.  Questions  of, 
how  determined,  555. 

Constitutionality  of  laws,  questions  of, 
how  settled,  592. 

Construction,  questions  of,  how  far  con- 
sidered, 315. 

Consuls,  to  be  nominated  by  president, 
582.  Cases  atfecting,  jurisdiction  of, 
598. 

Continental  Congress,  formation  of  first, 
4.  Advised  by  Franklin  in  1773,  6. 
First  suggestion  of,  6.  Recommended 
by  Virginia,  7.  Appointed  for  Sep- 
tember, 1774,  7.  Declared  expedient 
by  Massachusetts,  7.  First,  assem- 
bled and  organized,  8 ; delegates  to, 
how  aj^pointed,  8 ; how  composed,  9 ; 
method  of  voting  in,  9 ; relation  of,  to 
the  people  of  the  several  colonies,  10 ; 
purpose  of,  not  revolutionary,  10;  in- 
structions to  delegates  in,  11  ; how  it 
sought  redress,  12,  13 ; revolutionary 
tendency  of,  12;  assumed  guardian- 
ship of  rights  and  liberties,  14;  pro- 
ceedings of,  in  stating  rights,  14 ; 
duration  of,  16;  adjournment  of,  16; 
recommends  another  Congress,  16; 
each  colony  had  one  vote  in,  460. 
Second,  election  of  delegates  to,  by 
Massachusetts  Provincial  Congress, 
17 ; assembles  at  Philadelphia,  18 ; 
delegates  to,  how  appointed,  18 ; in- 
structions to  delegates  to,  19  ; rule  of 
voting  in,  19  ; powers  assumed  by,  21. 
Becomes  a permanent  body,  19.  Pe- 
tition of,  to  the  king,  refused  a hear- 
ing, 24.  Dissolves  the  allegiance  of 
the  colonies  to  the  king,  25.  Becomes 
a revolutionary  government,  26.  Nat- 
ure of  the  government  by,  38,  43. 
Situation  of,  at  the  end  of  1776,  71. 
Change  in  the  members  of,  in  1777, 72. 
Credentials  of  members  of,  in  1776,72. 
Where  held  from  1774  to  1783,  153 ; 
Constitution  of,  339. 

Continental  Currency  first  issued,  22. 


Contracts,  restraint  on  legislative  viola- 
tion of,  origin  of,  546,  .548  ; obligation 
of,  impaired  by  state  law,  redress  in 
case  of,  592.  See  Obligation  of  Contracts. 

Contribution,  rule  of,  attempted  to  bo 
changed,  142. 

Co»re/h/o»,  at  Williamsburg,  7.  At  Hart- 
ford, in  1779,  139. 

Convention  of  all  the  States.  See  Consti- 
tutional Convention. 

Copyrights,  state  legislation  concerning, 
531.  Power  over,  surrendered  to  Con- 
gress, 532. 

CoHXWALLis,  enters  Newark,  68.  Ef- 
fect of  capture  of,  105. 

Council,  vacancies  in,  how  filled  in  pro- 
vincial governments,  2.  Members  of, 
suspension  of,  from  office  in  provin- 
cial governments,  2.  Part  of  the  pro- 
vincial governments,  2;  charter  gov- 
ernments, 3.  How  chosen,  3. 

Council  of  Bevision,  proposed,  dangers  of, 
594 ; much  favored  in  Convention, 
595 ; purpose  of,  595. 

Counterfeiting,  power  of  Congress  to  de- 
fine and  punish,  527. 

Courts,  inferior.  Congress  may  establish, 
526,  585. 

Courts  of  United  ^States,  jurisdiction  of, 
over  persons  of  certain  character,  597. 
Admiralty  and  maritime  jurisdiction 
of,  599. 

Creditors,  rights  of,  secured  by  the  Treaty 
of  Peace,  171. 

Crimes,  trial  for,  to  be  in  state  where 
committed,  586;  to  be  by  jury,  586. 

Crown,  the  source  of  political  power  in 
the  colonies,  1.  Powers  of,  in  pro- 
vincial governments,  2. 

Currency  under  Revolutionary  govern- 
ment, 22,  53,  54. 

Cushing,  Thomas,  suggests  Continental 
Congress,  6.  Delegate  to  first  Conti- 
nental Congress,  8. 

D. 

Dane,  Nathan,  author  of  Ordinance  of 
1787,  549. 

Debts  due  to  English  merchants  at  the 
peace,  170;  action  of  Congress  re- 
specting, 174.  Of  states,  proposition 
to  assume,  519.  Of  United  States, 
provision  for  payment  of,  519  ; power 
of  Congress  to  pay,  519. 

Debt  of  the  United  States,  in  1783,  115. 
Foreign  and  domestic,  where  held, 
119.  National  character  of,  122.  Ne- 


752 


INDEX. 


ces^ity  of  revenue  power  to  discharge, ' 
123.  Amount  of,  at  tlie  close  of  the 

. war,  11.^,  123. 

l)ecIaraiio)i  of  Independence,  authorship 
of,  5G.  Effect  of,  upon  the  country, 
C2  ; upon  Congress,  62.  See  Indepen- 
dence. 

Declaration  of  Biglds,  hy  first  Continen- 
tal Congress,  14. 

Dclaicare,  a proprietary  government,  2. 
Constitution  of,  formed,  84.  Resists 
the  claim  of  great  states  to  western 
lands,  91.  Ratifies  the  Confederation, 
93.  Action  of,  commended,  95.  Op- 
posed to  change  in  rule  of  suffrage, 
335;  to  division  of  legislature,  397; 
to  census  of  free  inhabitants,  410;  to 
striking  out  wealth  from  rule  of  rep- 
resentation, 417 ; to  referring  Consti- 
tution to  people,  431;  to  property 
qualification  for  office,  434 ; to  re- 
stricting president  to  stated  salary, 
574.  In  favor  of  equality  of  suffrage 
in  House  of  Representatives,  400 ; of 
equality  of  states  in  Senate,  418  ; of 
executive  holding  office  during  “ good 
behavior,*’  424 ; of  referring  Constitu- 
tion to  state  legislatures,  431 ; of  each 
state  having  one  vote  in  Senate,  460; 
of  taxing  exports,  505.  Had  one  rep- 
resentative in  first  House,  408.  Vote 
of,  respecting  citizenship  as  qualifica- 
tion for  office,  448 ; respecting  slave- 
trade,  511 ; respecting  money  bills, 
453,  454;  respecting  admission  of 
states,  541.  Ratification  of  Constitu- 
tion by,  639,  641.  Patriotism  of,  641. 
Enlightened  by  discussions  on  Con- 
stitution in  Pennsylvania  convention, 
641.  Resolves  of,  respecting  the  Arti- 
cles of  Confederation,  704. 

Delaware  River,  Washington  crosses  the, 

68. 

Delegate,  Territorial,  position  of,  in  Con- 
gress, 479. 

Democracy,  d\(y  not  originate  in  Ameri- 
ca, 317.  Principle  of,  how  modified  in 
America,  317. 

Departments  of  Government,  division  of, 
80. 

Dickinson,  John,  in  favor  of  tax  on  ex- 
ports, 497. 

Dictatorship.  See  Washington. 

District  of  Colnmhia,  under’  exclusive 
government  of  Congress,  492,  532. 

Dock- Yards,  authority  of  Congress  over, 
532. 


Dorset,  Duke  of,  reply  to  the  American 
Commissioners,  194. 

Duane,  James,  efforts  of,  to  procure 
adoption  of  Constitution  by  New 
York,  684. 

Unties,  power  to  levy,  asked  for  by  Con- 
gress in  1781,  116;  not  given,  116. 
Power  of  Congress  to  impose,  518. 
To  be  uniform  throughout  United 
States,  522.  Wliat  may  be  laid  by 
states,  551.  Laid  by  states,  net  pro- 
duce of,  how  applied,  551;  subject  to 
revision  of  Congress,  551.  Payment 
of,  how  compelled,  591. 

E. 

Eastern  States,  course  of,  respecting  the 
navigation  of  the  Mississippi,  211. 

Elections,  frequency  of,  favored,  469. 

Elective  Franchise,  could  not  be  confined 
to  native  citizens,  441. 

Electors,  of  president,  advantages  of, 
425 ; pro})osed  in  committee,  455 ; 
number  of,  465,  564  ; embarrassments 
respecting  choice  of,  563 ; mode  of 
election  by,  564 ; case  of  no  choice 
by,  564  ; required  to  return  votes  for 
two  persons,  566;  how  chosen,  570; 
method  of  proceeding,  570.  Property 
as  a qualification  of,  433.  Of  repre- 
sentatives in  Congress,  qualification 
of,  439,  442. 

Ellsworth,  Oliver,  compromise  re- 
specting Congress  proposed  by,  402. 
Opposed  to  tax  on  exports,  504.  In- 
fluence and  arguments  of,  in  Connecti- 
cut convention,  647. 

Emigration,  from  Europe,  a subject  of 
solicitude,  440. 

England,  government  of,  not  a model 
for  the  Constitution,  264. 

English  Language  spoken  by  the  colo- 
nists, 1,  5. 

English  Laws  inherited  by  the  colo- 
nists, 5. 

Enlistments.  See  Army  and  Bounties. 

Equity  and  common  law,  distinction  be- 
tween, preserved  by  Constitution, 
586.  Jurisdiction  under  Constitution 
important,  586. 

Europe,  politics  of,  as  affecting  America, 
*361. 

Excises,  power  of  Congress  to  collect,  518. 
To  be  uniform  throughout  United 
States,  522. 

Executive,  methods  proposed  for  choice 
of,  350,  422.  Duration  of  office  of. 


1 N 1)  E X. 


muler  Hamilton’s  plan,  375.  Dura- 
tion of  ollico  of,  42-2;  proposed  to  be 
dnrinfj^  “ good  behavior,”  424.  Ke- 
eligibility  of,  dilferent  views  res])eet- 
ing,  423,' 42().  Choice  of,  directly  by 
people,  dilticnlties  attending,  425. 
Whether  shonld  be  subject  to  im- 
peachment, 42().  Choice  of,  conllict 
of  opinions  respecting,  455;  pro})osed 
to  be  by  Congress  for  seven  years, 
455;  by  electors,  456 ; by  Senate,  in 
certain  events,  456;  by  House  ot  Rep- 
resentatives, 457  ; by  concurrent  vote 
of  Senate  and  House  of  Representa- 
tives, 458,  462 ; proposed  negative  of 
Senate  in,  463.  Jealousy  of,  463.  See 
President  and  Vice-President. 

Exeentire  Department,  proi)osed  constitu- 
tion and  powers  of,  349,  422.  Relation 
of,  to  legislature,  349,  473.  Unknown 
to  Confederation,  351.  Influeuce  to 
be  allowedtto,  over  legislative,  471. 
Action  of,  requires  discretion,  472. 

“ Exeentire  Power  ” vested  in  President, 
meaning  of,  578. 

Exports,  taxation  of,  Pinckney’s  proposi- 
tion concerning,  435  ; refusal  of  South 
Carolina  to  submit  to,  495,  497  ; an 
undoubted  function  of  government, 
496;  consequences  of  denial  of,  496; 
when  only  beneticial,  496 ; question 
of,  as  affected  by  variety,  496;  mem- 
bers of  Convention  in  favor  of,  497 ; 
report  of  committee  of  detail  respect- 
ing, 500 ; great  embarrassments  re- 
specting, 503 ; arguments  for  and 
against,  504-506 ; opposition  to,  not 
confined  to  South,  504;  by  state.s,  an 
oppressive  power,  504;  ffnally  ])ro- 
hibited,  505;  for  what  reasons  op- 
posed in  Convention,  506  ; by  states, 
arguments  for  and  against,  550. 

Ex  Post  Facto  Laics,  definition  of,  545, 
548.  Passage  of,  prohibited  to  Con- 
gress, 545 ; to  states,  550. 

F. 

Faith  and  Credit,  to  be  given  to  certain 
acts,  etc.,  99. 

Falmouth  (now  Portland),  burned,  24,  51. 

Fanenil  Hall,  meeting  at,  respecting 
a national  regulation  of  commerce, 
226. 

Federal  Census,  origin  of  its  rule  of  three 
fifths,  144. 

Federal  Government,  how  distinguished 
from  “ national,”  333.  By  what  states 

I.— 48  ‘ 


preferred,  387.  Arguments  in^TOr  of, 
391  ; theoretically  sound,  392.  Had 
])roved  a failure,  393. 

Federal  Town.  See  Conifrcss  and  Seat  of 
Government. 

Federalist,  original  meaning  of,  627. 
Changes  in  meaning  of  t(‘rm,  627. 
Miniature  ship  so  called,  657,660. 

Federalist,  The,  published,  275.  Charac- 
ter and  inflnence  of,  280.  History  of 
the  editions  of,  280.  Remark  (>f,  n*- 
specting  Confederation,  352.  Purpose 
of  publication  of,  631.  When  first 
i.ssued,  631.  Authors  of,  281,  631. 

Federalists  of  Massachusetts,  enthusiasm 
kindled  by,  655.  Of  New'  Hampshii  e, 
action  of,  656.  Of  New'  York,  justi- 
fied by  Washington,  688;  complaints 
against,  688. 

Felony,  various  meanings  of,  526.  Power 
of  Congress  to  define  and  punish, 
526. 

Finances,  must  rest  on  some  source  of 
compulsory  revenue,  122.  See  Debts, 
Pevenue,  and  Duties. 

Fisheries,  great  value  of,  514. 

Foreigners,  cases  affecting,  jurisdiction 
in,  598.  Cannot  demand  sanctuary 
as  matter  of  right,  603. 

Foreign  Influence,  jealousy  of,  440,  445, 
457.  Necessity  of  counteracting,  448. 

Forts,  authority  of  Congress  over,  532. 

Framers  of  the  Constitution,  difficulties 
and  perplexities  of  their  task,  257. 
Their  qualifications,  etc.,  261.  Their 
success,  265. 

France,  debts  of  the  United  States  to, 
115.  Contracts  w'ith  the  king  of, 
118.  Relations  of  the  United  States 
to,  119. 

Fu.vnklix,  Benjamin,  his  plan  of  union 
in  1754,  4.  Advises  a Congress  in 
1773,  6.  Appointed  Postmaster-  Gen- 
eral by  Continental  Congress,  23. 
One  of  the  committee  to  prepare  Dec- 
laration of  Independence,  35.  One 
of  the  commissioners  to  procure  com- 
mercial treaties,  193.  Returns  from 
Europe,  290.  Public  services  of,  290. 
Character  of,  292.  Influence  iji  the 
Convention,  293.  Speech  of,  at  the 
close  of  the  Convention,  293.  Wit- 
nesses the  success  of  Washington’s 
administration,  294.  Proposition  of, 
respecting  representation  in  Con- 
gress, 406.  Views  of,  respecting 
money  bills,  454.  Opposed  to  paying 


754 


INDEX. 


president,  573.  In  favor  of  plural  ex- 
ecutive, 573.  Views  of,  respecting 
executive,  quite  unlike  Hamilton’s, 
573;  respecting  couse(iucuces  of  re- 
jection of  Constitution,  622.  Un- 
bounded conlideuce  of  i)eople  in, 
628. 

Free  Inhabitants,  privileges  of,  98. 

French  Loans.  See  France. 

French  llevohition,  early  writers  of  the, 
256.  Begun  when  Constitution  went 
into  operation,  362.  Interest  felt  in, 
in  America,  362. 

French  Troops,  arrive  at  Newport,  104. 
Join  the  army  at  New  York,  104. 

Fugitives,  from  justice,  provision  for  sur- 
render of,  under  the  Confederation, 
99.  From  service,  clause  in  Constitu- 
tion respecting,  history  of,  602.  See 
Slaves. 

G. 

General  Convention.  See  Constitutional 
Convention. 

Georgia,  a provincial  government,  2. 
Constitution  of,  formed,  84.  Ap- 
points and  instructs  delegates  to  the 
Convention,  250.  Had  but  one  cham- 
ber in  legislature,  397.  Opposed  to 
equality  of  suffrage  in  House  of  Rep- 
resentatives, 400.  Divided  on  qnes- 
tiou  of  equal  vote  of  states  in  Senate, 
403,  407.  Had  three  representatives 
in  the  first  House,  408.  Opposed  to 
censjus  of  free  inhabitants,  410;  to 
equality  of  states  in  Senate,  418;  to 
executive  luddiug  office  during  “ good 
behavior,”  424.  In  favor  of  property 
qualification  for  national  officers,  445. 
Vote  of,  respecting  citizenship'  as 
qualification  for  office,  448;  respect- 
ing money  bills,  453,  454.  Divided 
on  question  of  each  state  having  one 
vote  in  Senate,  460.  Opposed  to  tax- 
ing exports,  504.  Position  of,  in  Con- 
vention, respecting  slave-trade,  506, 
508.  Vote  of,  respecting  slave-trade, 
511.  Cession  by,  in  1802,  543.  Vote 
of,  on  suspension  of  habeas  corpus, 
545;  respecting  citizenship  clause  in 
Constitution,  604.  Ratification  of 
Constitution  by,  639,  646.  Remote- 
ness of,  646.  Situation  of,  at  close  of 
Revolution,  646.  Motives  of,  to  em- 
brace Constitution,  646.  Exposure  of, 
to  ravages  of  Indians,  646,  647.  Ad- 
dress by  legislature  of,  to  President 


Washington,  647.  Escape  of  slaves 
from,  to  Florida,  647. 

Gekiiy,  Eluuidge,  opposed  to  numeri- 
cal representation  in  Congress,  344  ; 
to  tax  on  exports,  504.  Refused  to 
sign  Constitution,  why,  621.  Cen- 
sured for  refusing  to  sign  Constitu- 
tion, 630. 

Gillox,  Commodore,  arguments  of,  in 
convention  of  South  Carolina,  660. 

Gorham,  Nathaniel,  views  of,  respect- 
ing rule  of  suffrage  for  House  of  Rep- 
resentatives, 398.  A member  of  com- 
mittee to  apportion  representatives, 
407. 

Government,  disobedience  to,  how  pun- 
ished, 352.  Essentials  to  supremacy 
of,  353.  Different  departments  iu, 
advantages  of,  472.  Approximation 
to  perfect  theory  of,  only  attainable, 
473.  Distribution  of  powers  of,  when 
easy,  584  ; when  difficult,  584, 

Governor,  part  of  the  provincial  govern- 
ments, 2. 

Grayson,  William,  opposed  to  Consti- 
tution, 633. 

Great  Britain,  re-union  with,  desired  by 
some,  624 ; letter  of  Colonel  Hum- 
phreys respecting,  624 ; Hamilton’s 
views  respecting,  625. 

Green  Dragon  Tavern,  meeting  at,  re- 
specting a national  regulation  of 
commerce,  226. 

Grievances.  See  Colonies  and  Bevolution. 

Gnardoqni,  Spanish  minister,  arrival  of, 
211.  Negotiations  with,  respecting 
the  Mississippi,  211. 

H. 

Habeas  Corpus,  privilege  of,  when  sus- 
liended,  545 ; under  common  law  of 
England,  545. 

Half-pag,  resisted  by  Connecticut  and 
Massachusetts,  127.  History  of,  130. 
Commutation  of,  131.  See  Officers  of 
the  Revolution. 

Hallam,  Henry,  Constitutional  History 
of  England  by,  great  value  of,  471. 

Hamilton,  Alexander,  laments  the 
changes. in  Congress  in  1778,  88.  Ex- 
ertions of,  respecting  revenue  system, 
117.  Reasons  of,  for  voting  against 
revenue  system,  118.  Answers  the 
objections  of  Rhode  Island.  118,  139, 
140.  On  the  commercial  advantages 
of  a revenue  pow(U’,  123.  On  the  dis- 
contents of  the  army,  and  the  public 


INDEX. 


755 


credit,  133.  Opinions  of,  in  1780,  con- 
cerninjj  the  reorjjanization,  etc.,  137. 
Maintains  that  Con«;rcss  should  have 
greatly  enlarged  powers,  138.  Sug- 
gests a convention  of  all  the  states  in 
1780,  138.  Enters  Congress,  139.  On  | 
the  conipatilnhty  of  federal  and  state  i 
powers,  139.  On  the  appointment  of  I 
revenue  officers,  139.  On  a revenue, 
and  the  mode  of  collecting  it,  140. 
Extent  of  views  of,  141.  On  the  rnle 
of  contribution,  142.  On  the  neces- 
sity for  power  of  taxation,  143.  Seeks 
to  introduce  new  principles,  143.  On  i 
.a  peace  establishment,  144.  Opin- 
ions on  the  powers  that  should  be 
given  to  Congress,  147.  Exertions  of, 
to  suppress  the  mutiny  at  Philadel- 
phia, 149.  Views  of,  respecting  de- 
fects of  the  Confederation,  150.  Opin- 
ions of,  too  far  i'nlidvance  of  the  time, 
152.  Answers  New  York  objections  | 
to  revenue  system,  166.  Views  of.  re-  i 
.spectiug  the  regnlation  of  commerce,  | 
186 ; the  statesmanship  of  America,  ! 
187.  Induces  New  York  to  send  del-  ! 
egates  to  Annapolis,  233.  Reports  at  I 
Annapolis  in  favor  of  a general  Con-  | 
vention  to  revise  the  federal  system, 
234.  Relation  of,  to  the  plan  of  a 
general  Convention  and  a national  ! 
Constitution,  236.  Conieraplates  a j 
new  government,  236.  Opinions  of,  | 
concerning  the  Confederation,  237.  j 
Induces  the  legislature  of  New  York  ; 
to  nrge  a general  Convention,  243.  I 
Views  of,  on  the  mode  of  proceeding,  j 
246.  Contidence  of,  in  the  expert-  j 
raent  of  a Convention,  253.  History  ! 
and  character  of,  273.  Birth  of,  274. 
Various  public  services  of,  275,  689. 
Death  of,  275.  Talleyrand’s  opinion 
of,  276.  Views  of,  respecting  the 
English  Constitution,  276.  Relation 
of,  to  the  Constitution,  277.  Com- 
pared with  the  younger  Pitt,  278,279. 
Eminent  fitness  of,  for  the  times,  278. 
Advocates  the  Constitution  in  The 
Federalist,  280.  Compared  with  Web- 
ster, 281.  Anxiety  of,  about  the  Con- 
stitution, 281.  E.<;says  of,  in  Federalist, 
281,631.  Unjustly  charged  with  mo- 
narchical tendencies,  320,  371,  381. 
Views  of,  respecting  Constitution, 
371,  Principles  of  civil  obedience,  as 
propounded  by,  373.  Views  of,  re- 
specting rnle  of  snflPrage  for  House  of 


Representatives,  398;  dissolution  of 
Union,  399;  choice  of  president,  424, 
468,  .565;  naturalization,  446  ; larger 
House  of  Representatives,  451.  Meas- 
ures of,  respecting  summoning  of  Con- 
stitutional Convention,  490.  Views 
of,  respecting  executive,  quite  unlike 
Franklin’s,  573  ; president’s  power  to 
adjourn  Congress,  583.  Ex[»lanatiou 
of,  respecting  appellate  power  of  Su- 
preme Court,  589.  Views  of,  respect- 
ing amendment  of  Constitution,  615. 
Objections  of,  to  Constitution,  622. 
Views  of,  respecting  consequences  of 
rejection  of  Constitution,  622, 674  ; pos- 
sible rennion  with  Great  Britain,  625. 
Believed  people  predisposed  in  favor 
of  Constitution,  640.  Arrangements 
of,  for  transmission  of  news  of  action 
of  states  on  Constitution,  662.  Lead- 
ing spirit  in  convention  in  New  York, 
674.  Anxiety  of,  respecting  action 
of  states  on  Constitution,  674.  Had 
great  cause  for  solicitude,  674.  Pros- 
pects of  usefulness  of,  674.  Foresight 
of,  respecting  operation  of  Constitu- 
tion, 675.  Had  profound  understand- 
ing of  Constitution,  675.  Ambition 
of,  675.  Importance  of  public  charac- 
ter and  conduct  of,  675.  Contest  of, 
with  opponents  of  Constitution  in 
New  York,  675.  Critical  po.sitiou  of, 
as  citizen  of  New  York,  675.  Reply 
of,  to  opponents  of  Constitution  in 
New  York,  676.  News  received  by,  of 
ratification  of  Constitution  by  New 
Hampshire,  677.  Letter  of,  to  Madi- 
son. respecting  chances  of  ratification 
by  Nevr  York,  678.  Would  have  been 
led  by  personal  ambition  to  remove 
from  New  York,  678.  Policy  of,  na- 
tional, 679.  Reason  of,  for  embracing 
Constitution,  679.  Eftbrts  of,  to  pro- 
cure adoption  of  Constitution  by  New 
York,  679,  684.  Sends  news  of  ratifi- 
cation by  New  Hampshire  to  Madi- 
s<ui,  680.  Great  speech  of,  in  New 
York  convention,  in  favor  of  Consti- 
tution, 685.  Writes  to  Madison,  ask- 
ing advice  respecting  New  York,  686. 
Honors  paid  to,  by  city  of  New  York, 
689. 

Hancock,  John,  retires  from  Congress, 
87.  Returns  to  Congress,  87.  Presi- 
dent of  Massachusetts  convention, 
653.  Proi^oses  amendments  to  Con- 
stitution, 653.  Great  influence  of,  65.3. 


750 


INDEX. 


Harrison,  Benjamin,  opposed  to  Con- 
stitution, 633. 

Hartford  Convention^  met  in  1779,  139. 

Heights  of  HaerJeni,  occupied  by  Wusli- 
ington,  64. 

Henry,  Patrick,  Governor  of  Virginia, 
87.  Declined  to  attend  Convention, 
424,  Opposed  to  Constitution,  633. 
Clniracteristics  of,  633,  668.  In  favor 
of  submitting  Constitution  to  people 
of  Virginia,  635.  Leader  of  opponents 
of  Constitution  in  Virginia,  663.  Jef- 
ferson’s estimate  of,  663.  Great  pop- 
ularity of,  663,  Wisdom  of,  lacked 
compreliensiveness,  663.  Great  pow- 
ers of,  employed  against  Constitution, 
664.  Views  of,  respecting  American 
spirit  of  liberty,  664.  Considered  Bill 
of  Rights  essential,  664.  Arguments 
of,  against  Constitution,  665,  666. 
Modern  scepticism  concerning  abili- 
ties of,  668.  Quotes  Jetferson’s  views 
of  Constitution,  669.  Opposed  to 
Constitution  to  the  last,  in  Virginia 
Convention,  681.  Project  of,  for 
amending  Constitution,  681.  Pa- 
triotic conduct  of,  on  adoption  ot 
Constitution  by  Virginia,  682.  Be- 
came earnest  defender  of  Constitu- 
tion, 682. 

House  of  Burgesses j of  Virginia,  dis- 
solved, 7. 

House  of  Commons,  ministerial  majority 
of,  during  Revolution,  466. 

House  of  Bepresentatives,  Con.stitntion  of, 
discussion  respecting,  336.  Members 
of,  chosen  for  two  years,  398  ; qnaliti- 
cations  of,  398.  Rule  of  suffrage  for, 
great  debate  on,  398.  Exclusive  pow- 
er of,  over  money  bills,  406,  452. 
Power  of,  to  fix  salaries  of  govern- 
ment officers,  406.  Ratio  of  represen- 
tation in,  406,  451.  First,  apportion- 
ment of  members  for,  407,  408.  Basis 
of,  agreed  to,  418.  Members  of,  must 
be  twenty-five  years  old,  444 ; have 
been  citizens  three  years,  444  ; be  in- 
habitants of  states  from  which  cho- 
sen, 450.  Larg’er,  favored  by  Wilson, 
Madison,  and  Hamilton,  451.  Ulti- 
mate choice  of  executive  by,  457.  To 
present  impeachments,  483.  Quorum 
of,  483.  To  choo.se  its  own  presiding 
officer,  484.  To  vote  for  president  by 
states,  567.  Choice  ot  president  by, 
quorum  for,  567  ; majority  ot  states 
reqni.site  to,  567. 


Howe,  Sir  William,  proclamation  by, 
respecting  oath  of  allegiance,  73. 
Takes  possession  of  Philadelphia,  78. 
Estimate  of,  concerning  the  American 
force  at  the  Brandywine,  78. 

Humphreys,  Colonel,  one  of  Washing- 
ton’s aides,  624.  Letter  of,  respecting 
hopes  of  loyalists,  624. 

Huntington,  Governor,  influence  of,  in 
convention  of  Connecticut,  648. 

I. 

Impeachment^  executive  proposed  to  be 
removable  on,  422.  Whether  execu- 
tive should  be  subject  to,  426.  Ibnv 
to  be  decided,  482.  To  be  presented 
by  House  of  Representatives,  483.  Of 
l)resident,  causes  of,  569.  King’s  par- 
don cannot  be  pleaded  in  bar  of,  579. 
Pre.sident  cannot  i)ardon,  579.  King 
may  pardon,  .579. 

Impeachments,  proposed  plan  respecting, 
465.  Nature  of,  and  constitutional 
provisions  respecting,  481.  To  be 
tried  by  Senate,  482. 

Imposts,  power  of  Congress  to  collect, 
518.  To  be  uniform  throughout 
United  States,  522.  What  may  be 
laid  by  states,  551.  Laid  by  states, 
net  produce  of,  how  applied,  551 ; 
subject  to  the  revision  of  Congress, 
551.  Revenue  from,  easiest  mode  of 
paying  expenses  of  government, 
648. 

Independence,  resolution  of,  adopted  in 
Congress,  35.  Declaration  of,  ordered 
to  be  35;  brought  in,  35; 

adopted,  35  ; efl'ect  of,  36. 

Indian  Affairs,  snperinttnidence  of,  as- 
sumed by  Continental  Congress,  23. 

Indians,  position  of,  522.  Commerce 
with,  522;  regulated  by  federal  au- 
thority, 523;  provision  of  Confedera- 
tion respecting,  523.  Not  regarded  as 
foreign  nations,  524. 

Inspection  Laws,  subject  to  whaT  abuse, 
551. 

Insurrection.  See  Massachusetts  and 
Shnys’s  Itebellion. 

J. 

Jaa",  John,  report  of,  on  the  infractions 
of  the  Treaty  of  Peace,  170,  173.  Pro- 
jected mission  of,  to  Spain,  211.  Pro- 
ceedings of,  as  Seci'ctary  for  Foreign 
Affairs,  respecting  the  Mississippi, 
211.  Essays  of,  in  Federalist,  281,  631. 


INDEX. 


757 


ElTorts  of,  to  i)rociii'o  jidoption  of  i 
Constitution  by  Now  York,  f)84.  ! 

Jkkfkkson,  Thomas,  ono  of  the  coin- 
initteo  to  prei)are  Declaration  of  In- 
(lepemlence,  35.  Account  by,  con- 
ccrnin<(  the  Confti’css  of  177(5,  44. 
Account  by,  of  Declaration  of  Indc-  ^ 
])cu(lence,  56.  In  the  legislature  of  j 
Virginia,  87.  Ono  of  the  coininission-  j 
ers  to  inocure  coininercial  treaties, 
193.  On  the  surrender  of  the  Missis-  ^ 
sippi,  216.  Suggests  the  decimal  coin-  ^ 
age,  297.  Views  of,  resi)ecting  ad-  ^ 
mission  of  states,  359.  Resolve  of, 
for  organization  of  states  from  north-  i 
western  territory,  534.  Practice  of, 
respecting  cabinet,  576.  Views  of,  ■ 
respecting  government,  633;  moditi- ■ 
cations  of  Constitution,  634.  At  Paris 
when  Constitution  was  adopted,  634.  ' 
Did  not  counsel  rejection  of  Constitu- 
tion, 634.  Persevered  in  certain  ob- 
jections to  Constitution,  635.  Letters 
of,  respecting  ConstiLition,  669,  671. 

Johnson,  Dr.,  of  Connecticut,  views  of, 
respecting  Constitution,  394.  First  ‘ 
suggested  present  constitution  of 
Congress,  400.  I 

JouruaJ,  to  be  kept  by  each  House  of 
Congress,  483. 

Judges,  power  of  removal  of,  in  Massa- 
chusetts, 3,  4 ; in  England,  356.  Ten- 
ure of  office  of,  356;  iu  Euglaud,  356. 
Removal  of,  356.  “Good  behavior” 
of,  357. 

Judicial  Power  of  United  States,  to  settle 

, disputes  between  state  and  nation, 
347.  Unknown  to  Confederation, 
351.  Necessity  and  office  of,  352.  In- 
t(*nt  evinced  b,y  introduction  of,  353. 
Made  supreme,  354.  Coextensive  with 
legislative,  355.  Control  of,  over  state 
legislation,  355.  Formation  of,  584. 
Great  embarrassments  respecting, 584. 
Admirable  structure  of,  585.  Juris- 
diction of,  cases  embraced  by,  585.  i 
Great  importance  of  clearly  defining, 
587.  Embraces  cases  under  Constitu- 
tion, laws,  and  treaties,  589.  Changes 
and  improvements  in  original  plan 
of,  590.  Constitutional  functions  of, 
591.  Leading  purposes  of,  591.  May 
declare  laws  unconstitutional,  592. 
Simplicity,  etc.,  given  by,  to  opera- 
tion of  government,  594. 

Judiciary,  functions  of,  353,  591.  Ques- 
tions concerning  number  of  tribunals 


in,  354.  Proposed  powers  of,  355. 
Restriction  respecting  salary  of,  3.57, 
426.  Jurisdiction  of,  respecting  im- 
])cachmcnt  of  national  ofticers,  426 ; 
over  cases  arising  under  national  laws, 
426;  over  (piestions  involving  na- 
tional peace,  426.  Action  of,  not  to 
be  influenced  by  other  departttients, 
472. 

Judiciary  of  Massachusetts,  attempt  to 
alter  the  charter  in  respect  to,  3. 

K. 

Kentucky,  inhabitants  of,  resist  the  sur- 
render of  the  Mississippi,  217. 

King,  Rufus,  birth  and  education  of, 
300.  Public  services  of,  300.  Pro- 
poses the  clause  respecting  the  obli- 
gation of  contracts,  302,  548.  Sena- 
tor in  Congress,  303.  Minister  to 
England,  303.  A member  of  comn)it- 
tee  to  apportion  representatives,  407. 
Views  of,  respecting  Senate,  458  ; seat 
of  ‘government,  491  ; representation 
of  slaves,  503.  Remarks  of,  respect- 
ing slave-trade,  495.  Effort  of,  to  ex- 
clude slaver^"  from  northwestern  ter- 
ritory, 534. 

L. 

Land  as  the  basis  of  a rule  for  contribu- 
tion, 142.  Adopted  as  measure  of 
wealth  by  Congress  of  1776,  415.  Of 
United  States  unappropriated,  Madi- 
son’s motion  respecting,  540. 

Lands,  rights  of  aliens  to  hold,  proposed 
in  certain  treaties,  189.  See  Western 
Lands  and  Territory. 

Law  of  Nations,  offences  against,  526  ; 
power  of  Congress  to  define  and  pun- 
ish, 526.  Respecting  extradition  of 
fugitives,  605. 

Laws  of  United  States,  how  enacted, 
484;  supreme,  5.53,  554;  to  be  in  pur- 
suance of  Constitution,  554 ; cases 
arising  under,  jurisdiction  over,  589. 
Of  states,  constitutionalit}^  of,  557. 
Constitutionality  of,  how  determined, 
592. 

Law,  Richakd,  influence  of,  iu  conven- 
tion of  Connecticut,  648. 

Leu,  Chahles,  General,  expedition  of, 
against  the  Tories  of  New  York, 
46. 

Lee,  Richard  Henry,  moves  the  reso- 
lution of  independency,  34.  Account 
of,  34.  On  the  navigation  of  the 


758 


INDEX. 


Missis.sipi)i,  211.  Proposition  of,  in 
Congress,  to  amend  Constitution,  629. 
Opposed  to  Constitution,  633. 

Legislative  Department,  division  of,  into 
two  chambers,  82.  Hamilton’s  views 
respecting,  374, 376, 377.  Great  strug- 
gle respecting,  in  Constitutional  Con- 
vention, 394.  Objections  to  one  cham- 
ber in,  395.  How  far  may  safely  be 
influenced  by  executive,  471.  Action 
of,  requires  discretion,  472.  Close  re- 
lation of,  to  executive,  473. 

Letters  of  Marque  and  lleprisal  issued  by 
Massachusetts  in  1775,  51.  Power  of 
Congress  to  grant,  527. 

Lexington,  battle  of,  17. 

Livingston,  Robert  R.,  one  of  the  com- 
mittee to  ]>rei)are  Declaration  of  Inde- 
pendence, 35.  Remarks  of,  in  conven- 
tion of  New  York,  677.  Efforts  of,  to 
procure  adoption  of  Constitution  by 
New  York,  684. 

Long  Island,  battle  of,  63. 

Lowndes,  Rawlins,  opposed  to  Consti- 
tution, 636.  Arguments  of,  against 
Constitution,  636. 

Loyalists,  scheme  of,  respecting  Bisho]) 
of  Osnaburg,  624.  Numbers  of,  small, 
625.  Alarm  loccasuoned  by  sup[)osed 
scheme  of,  625.  See  Tories' 

M. 

Madison,  James,  enters  the  Revolution- 
ary Congress,  87.  Exertions  of,  re- 
specting revenue  system,  117.  Writes 
the  address  in  favor  of  rev(‘nue  sys- 
tem, 118.  Answers  Massachusetts  on 
the  half-pay,  129.  Birth  of,  282.  Pub- 
lic services  of,  to  the  close  of  the  war, 
282.  Initiates  the  Virginia  measures 
leading  to  a general  Couvcmtion,  284. 
Attends  the  convention  at  Annapolis, 

286.  Attends  the  general  Conven- 
tion, 287.  Labors  of,  in  the  Conven- 
tion, 287.  Opinions  and  character  of, 

287.  Described  by  Jefferson,  288. 
Letter  of,  to  Philip  Mazzei,  289.  Ac- 
tion of,  respecting  change  in  rule  of 
suffrage,  335.  Views  of,  respecting 
national  government,  338;  Senate, 
339;  revision  by  Congress  of  state 
legislation,  347  ; revisionary  check  on 
legislation  by  executive,  350;  use  of 
force  against  states,  353;  Constitu- 
tion, 379;  rule  of  suffrage  for  House 
of  Rei)resentati ves,  398;  dissolution 
of  Union,  399;  Western  States,  409. 


How  far  in  favor  of  executive  during 
“ good  behavior,”  424.  Views  of,  re- 
specting difference  between  Constitu- 
tion ami  league,  431 ; naturalization, 
446.  In  favor  of  larger  House  of 
Representatives,  451.  Views  of,  re- 
specting eligibility  of  members  of 
Congress  to  office,  475  ; seat  of  gov- 
ernment, 491.  In  favor  of  tax  on  ex- 
ports, 497.  Views  of,  re.specting  slave- 
trade,  510.  Proposition  of,  respecting 
Indian  affairs,  524.  Views  of,  respect- 
ing legislation  of  Congress  of  Confed- 
eration over  northwestern  territory, 
535,  537,  539.  Views  and  votes  of, 
concerning  northwestern  territory, 
,537.  Holds  regulation  of  commerce 
to  be  indivisible,  552.  Views  of,  re- 
specting treason,  562.  Views  of,  re- 
specting amendment  of  Constitution, 
616;  consequences  of  rejection  of  Con- 
stitution, 622.  Proj)osed  amendment 
of  Constitution  by  Congress,  defeated 
by,  629.  Essays  of,  in  Federalist,  281, 
631.  A leading  advocate  of  Constitu- 
tion ill  Virginia,  633.  Reply  of,  to 
opponents  of  Constitution  in  Virginia 
convention,  667.  Description  of  new 
goverument  by,  667.  Efforts  of,  in 
Virginia  convention,  671.  Opinion  of, 
respecting  conditional  ratification  of 
Constitution,  686. 

Magazines,  authority  of  Congress  over, 
532. 

Majority,  principle  of,  seldom  to  be  de- 
parted from,  507. 

Mandamus  Councillors,  apjiointment  of, 
in  Massachusetts,  16.  Treatment  of, 
by  the  people,  16. 

Manly,  John,  commander  of  the  “ Lee,” 
51.  Ca])tures  a prize,  51. 

Maritime  Jurisdiction,  of  courts  of  United 
States,  599.  Under  Confederation, 
599. 

Marshall,  John,  a leading  advocate  of 
Constitution  in  Vii’ginia,  633. 

Martin,  Luther,  views  of,  resiiecting 
Constitution,  370,  389 ; rule  of  suf- 
frage for  House  of  Reprc'sentati  v(>s, 
398  ; manner  of  vot  ing  in  Senate,  432. 
Motion  of,  r('s]i(‘cting  admission  of 
states,  541.  Supremacy  of  Constitu- 
tion, etc.,  proposed  by,  554.  Great 
o])position  of,  to  Constitution,  620, 

637.  Communication  of,  to  legislature 
of  Maryland,  637 ; chief  ground  of, 

638. 


1 N I)  E X. 


759 


I^lAUTiNDAi.K,  captain  in  tlic  Rovolntion- 
ary  naval  force,  51. 

Manihunl,  a ])i()pric.tary  j;ovcnnncnt,  2. 
Constitution  of,  formed,  84.  Uemon- 
strates  a«;ainst  the  claims  to  west- 
ern lands,  91,  282.  Action  of,  upon 
tlie  Articles  of  Confederation,  9‘.1,  707. 
Action  of,  commendeal,  95.  Appoints 
and  instructs  delegates  to  the  Conven- 
tion, 250. ‘^leleoates  from,  divided  in 
opinion,  3S9.  Divided  on  question  of 
national  lejiislature,  397  ; equality  oi 
sutfra^e  in  House  ot  Representatives, 
400.  In  favor  of  c(ptal  representation 
of  states  in  Senate,  403,  418.  Had  six 
representatives  in  tirst  House,  408. 
Opposed  to  census  of  free  inhabitants, 
410;  executive  holding-  office  during 
“ good  behavior,”  424.  In  favor  of 
referring  Constitution  to  state  legis- 
latures, 431 ; each  state  having  oue 
vote  ill  Senate,  432,  460.  Vote  ot,  re- 
specting citizenship,  as  qualification 
for  office,  448 ; money  bills,  453,  454. 
Opposed  to  nine  years’  citizenship  as 
qualitication  of  senator,  458;  taxing 
exports,  505.  Vote  of,  respecting 
slave-trade,  511;  admission  of  states, 
541.  Action  of  legislature  of,  respect- 
ing Constitution,  637.  Convention 
of,  to  vote  on  Constitution,  638;  im- 
portance of  action  of,  657 ; efforts 
made  in,  to  amend  Constitution,  de- 
feated, 657. 

Mason,  George,  views  of,  respecting 
Constitution,  391.  Objections  of,  to 
compound  ratio  of  representation, 
409.  Views  of,  respecting  money 
.bills,  454.  Opposed  to  tax  on  ex- 
ports, 504.  Proposition  of,  to  restrain 
grants  of  perpetual  revenue,  519. 
Views  of,  respecting  militia,  530.  Re- 
fused to  sign  Constitution,  why,  621, 
635.  Great  ability  of,  633.  Oiiposed 
to  Constitution,  633.  In  favor  of  sub- 
mitting Constituiion  to  people  of 
Virginia,  635.  Arguments  of,  against 
Constitution,  in  Virginia  convention, 
666. 

Massachusetts,  a charter  government,  3. 
Provincial  governor  of,  appointed  by 
the  crown,  3.  Council  of,  chosen  by 
Assembly,  3.  Representatives  of,  cho- 
sen by  the  people,  3.  Appoints  dele- 
gates to  first  Continental  Congress, 
8.  Colonial  government  of,  how  end- 
ed, 16.  Pi  o\  iiicial  Congress  of,  bow 


formed,  17.  Authority  assumed  by 
Provincial  Congress,  17.  A;)plies  to 
the  Continental  Congress,  lor  direc- 
tion and  assistance,  20  ; about  gov- 
ernment, 20.  Army  raised  by,  in 
1775,  20,  21.  Issues  letters  of  manpie 
and  nq)i-isal,  51.  Establishes  priz(! 
court,  51.  Money  borrowed  of,  by 
General  Washington,  55.  Constitu- 
tion of,  formed,  83.  Objections  of,  to 
the  half-piiy,  127 ; answered  by  Mad- 
ison, 129.  Act  of,  concerning  British 
debts,  171.  Constitution  of,  dangers 
to  which  it  was  exposed,  177.  In- 
surrection in,  179,  363.  Disatlection 
in,  extensive,  183.  Cedes  claims  to 
western  territory,  201,  534.  Proceed- 
ings of,  res})ecting  a general  Conven- 
tion, 225.  Condition  of  the  trade  of, 
in  1785-86,  226.  Legislature  of,  pro- 
poses a general  Convention,  226 ; 
resolutions  of,  not  presented  to  Con- 
gress, 227.  Resolution  of,  for  a gen- 
eral Convention,  244.  Appoints  and 
instructs  delegates  to  the  Conven- 
tion, 249.  Opposed  to  equality  of 
suffrage  in  House  of  Representatives, 
400  ; equal  representation  of  states  in 
Senate,  403,  453j  Divided  on  ques- 
tion of'eqnal  vot*e  of  states  in  Senate, 
407,  418.  Had  eight  representatives 
in  tirst  House,  408.  In  favor  of  cen- 
sus of  free  inhabitants,  410.  Opposed 
to  executive  holding  office  during 
“good  behavior,” 424.  Qualifications 
of  voter  in,  434.  In  favor  of  ]uoper- 
ty  qualification  for  national  officers, 
445.  Vote  of,  respecting  citizenship 
as  qualitication  for  office,  448  ; money 
bills,  453,  454.  Opposed  to  nine  years 
citizenship  as  qualification  ot  Senator, 
458;  each  state  having  one  vote  in 
Senate,  460.  Sentiments  of,  respect- 
ing holding  of  office  by  members  of 
Congress,  474.  In  favmr  of  states 
paying  memlters  of  Congress,  481. 
Opposed  to  taxing  exports,  505.  Vote 
of,  respecting  slave-trade,  511.  Slav- 
ery in,  at  a very  early  period,  604. 
Parties  in,  for  and  against  Constitu- 
tion, 630.  Reeei)tion  of  Constitution 
in, 630.  Convention  in,  to  vote  on  Con- 
st i t ution,630,649.  Formidable  opposi- 
tion to  Constitution  in  convention  of, 
(ii8.  High  rank  of,  649.  Vacillation 
of,  649.  Revolutionary  history  of, 
649.  Anxiety  respecting  action  of,  on 


INDEX. 


7G0 


Constitution,  G49.  Insurrection  in, 
elfect  of,  649.  Constitution  exposed 
to  peculiar  hazard  in,  649  ; ratified  in, 
hy  C()m{)i'oniise,  649.  Constitution  of, 
excellence  of,  649.  Parties  in  conven- 
tion of,  650.  Convention  in,  aniend- 
inents  to  Constitution  recoinniend(Ml 
hy,  650,  654,  655;  opponents  of  Con- 
stitution in,  650,  651  ; eminent  men 
in,  651.  Probable  disastrous  effects 
of  rejection  of  Constitution  by,  652. 
Convention  of,  proceedings  in,  653  ; 
discussion  in,  respecting  Hancock’s 
amendments  to  Constitution,  654  ; pa- 
triotic conduct  of,  655.  Enthusiasm 
kindled  by  action  of,  656. 

Mazzki,  Philip,  letter  to,  by  Madison, 
289. 

McKean,  Thomas,  views  of,  respecting 
Constitution,  644.  Public  services  of, 
644. 

Mifflin,  General,  sent  by  Washington 
to  the  Congress,  68. 

Military  Posts,  retained  by  the  British 
after  the  treaty,  173,  174. 

Militia,  relation  of,  to  the  Continentnl 
Congress,  23.  Committee  on,  519.  Of 
states,  power  of  general  government 
over,  528 ; inefficient  as  troops  in 
Revolution,  528;  lack  of  uniformity 
among,  529  ; power  of  general  gov- 
erment  over,  necessary,  529 ; how  to 
be  disciplined,  530 ; when  Congress 
may  call  forth,  531;  pri'sident  com- 
mand,er-in-chief  of,  578;  cannot  call 
out  without  authority  of  Congress, 
579. 

Ministers.  See  Ambassadors. 

Mint,  establishment  of,  297. 

Mississippi  River,  controversy  and  nego- 
tiations respecting  navigation  of,  208, 
210  ; referred  to  the  new  governimnit, 
220.  Navigation  of,  a topic  of  oi)po- 
nents  of  Constitution  in  Virginia  con- 
vention, 671;  Madison’s  views  respect- 
ing, 673. 

Mississippi  Valley,  people  of,  spirit  of  the, 
214;  retaliate  upon  the  Spanish  au- 
thorities, 217 ; form  committees,  etc., 
217. 

Monarchical  Government,  dangers  of  at- 
tempting to  establish,  250, 

Monarchy,  detested  by  people  of  United 
States,  466,  623.  Proposed,  rumors 
of,  623.  Attempt  to  introduce,  avert- 
ed by  Constitution,  625. 

Money,  power  to  coin,  given  to  Con- 


gress, 524 ; borrow,  and  emit  bills, 
524. 

Money  Bills,  originated  by  House  of  Rep- 
resentatives, 406.  Provision  concern- 
ing, objected  to,  407;  origin  of,  452. 
Originated  by  House  of  Commons, 
4.52,  Hallam’s  discussion  respecting, 
452.  Vote  of  states  respecting,  453, 
454.  Different  propositions  in  Con- 
vention respecting,  454.  May  be 
amended  in  Senate,  457. 

Montesquieu,  political  discussions  of, 
alluded  to,  255. 

jMorkis,  Gouverneur,  enters  the  Rev- 
olutionary Congress,  88.  Birth  of, 
295.  Public  services  of,  295.  Chosen 
assistant  financier,  297.  Author  of  the 
decimal  notation,  297.  Prepares  the 
text  of  the  Constitution,  297.  Char- 
acter of,  298.  Invited  to  write  in 
The  Federalist,  299,  First  Minister  to 
France,  299.  Senator  from  New  York, 
299.  Deatl)  of,  299.  Action  of,  re- 
specting change  in  rule  of  suffrage, 
335.  A member  of  committee  to  ap- 
portion representatives,  407.  Views 
of,  respecting  Atlantic  and  Western 
States,  409;  respecting  compound  ra- 
tio of  re])resentation,  409.  Proviso 
of,  respecting  taxation  and  re})resen- 
tation,  413.  Views  of,  respecting 
choice  of  executive,  424.  Remarks 
of,  respecting  slave-trade,  495.  In 
favor  of  tax  on  exports,  497,  Views 
of,  on  concession  to  Southern  States, 
503.  Committee  of  compronuse  pro- 
posed by,  508.  Proposition  of,  re- 
S])ecting  vacant  lauds,  542. 

Morris,  Robert,  on  a committee  to  iiu 
form  Washington  of  extraordinary 
powers,  69.  Laments  the  absence  of 
some  great  revolutionary  characters, 
72.  Appointed  superintendent  of 
finances,  116.  Resignation  of,  133. 

Mutiny,  at  Philadelphia,  of  federal 
troops,  149. 

N. 

Natchez,  seizure  of  property  at,  by 
Spanish  authorities,  214. 

National  Governmetit,  how  distingnish- 
('(1  from  “ feileral,”  334.  Necessities 
of,  334.  To  be  kej)t  distinct  from 
state  gov(irnments,  337.  By  what 
states  preferred,  387.  Arguments  in 
favor  of,  390;  1 heoridieally  sound, 
392;  strengthened  by  facts  of  pro- 


INDEX. 


701 


vimis  history,  393.  Supposed  ten- 
dency of,  to  absorb  state  sovereign- 
ties, 394.  Self-defence  a principal 
object  of,  502. 

Xational  Legislature,  how  to  ho  consti- 
tuted, 335.  Divided  into  two  branch- 
es, 33G.  Kepresentatiou  in,  diverse 
views  respecting,  336;  as  aftected  by 
state  interests,  340  ; difticnlty  in  fix- 
ing ratio  of,  340.  Unanimity  respect- 
ing powers  of,  in  Convention,  345. 
Negative  by,  on  state  legislatures, 
proposed,  345.  Must  operate  directly 
on  people,  353.  Proposed  powers  of, 
355. 

XatnraUzation,  a subject  of  solicitude, 
440.  Formerly  a state  power,  441, 
442.  A proper  subject  of  constitu- 
tional provision,  442.  Power  of, 
transferred  from  state  to  national 
government,  443.  Views  of  Hamil- 
ton and  Madison  respecting,  446. 
Embarrassments  of  subject,  446.  Uni- 
form rule  of,  power  to  establish, 
given  to  Congress,  524. 

Xaval  Force,  employment  of,  in  Massa- 
chusetts Bay,  50. 

Xavigation  Act,  report  of  committee  of 
detail  respecting,  501,  507.  Position 
of  Sonthern  States  respecting,  504. 
Two-thirds  vote  proposed  by  them  to 
be  required  for,  506.  Interest  of  dif- 
ferent states  respecting,  507.  Pas- 
sage of,  by  majority,  agreed  to,  510. 

Xavy,  origin  of  the  Re volnt ionary,  50. 
Want  of,  506.  Power  of  Congress  to 
provide  and  maintain,  528 ; to  make 
rules  for,  528.  Power  of  president  to 
employ,  578.  President  commander- 
in-chief  of,  578. 

Xewarlc,  Washington’s  evacuation  of, 

68. 

Xewbnrgli  Addresses,  106  ; authorship  and 
'Style  of,  112.  Copy  of,  sent  to  states, 
118.  Note  on,  130. 

Xew  England,  confederation  of,  in  1643, 
604. 

Xew  Hampsltire,  a provincial  govern- 
ment, 2.  Ante-Revolutionary  govern- 
ment of,  2.  Constitution  of,  formed, 
82.  Appoints  and  instructs  delegates 
to  the  Convention,  249,  Late  attend- 
ance of,  in  Convention,  328.  Had 
three  representatives  in  first  House, 
408.  In  favor  of  property  qualifica- 
tion for  national  officers,  445.  Vote 
of,  respecting  citizenship,  as  quali- 


fication for  office,  448;  respecting 
moiK'y  bills,  454;  res]M‘cting  slave- 
trade,  511.  In  favor  of  taxing  ex- 
])orts,  505.  Vote  on  Constitution  in, 
postponed,  why,  636;  (dfect  of,  on 
parties  in  Virginia,  636.  Population 
of,  easily  led  to  oppo.se  Constitution, 
638.  Convention  of,  to  vote  on  Con- 
stitution, 638;  members  of,  instruct- 
ed to  reject  Constitution,  638,  648; 
amendments  presented  to,  6.56;  ma- 
jority of,  at  first  (){>posed  to  Constitu- 
tion, 656;  adjournment  of,  effect  of, 
656.  Action  of  Fe<leralists  of,  656. 
Convention  of,  meets,  on  adjourn- 
ment, 661;  anxiety  respecting  action 
of,  661.  Ratification  of  Constitution 
by,  677.  Ninth  state  to  ratify  Con- 
stitution, 680. 

Xew  Jersey,  a provincial  government, 
2.  Washington’s  retreat  through,  68. 
Constitution  of,  formed,  84.  Proposal 
of,  in  1778,  for  the  regulation  of  com- 
meree,  89,  186.  Resists  the  claim  of 
great  states  to  western  lands,  91. 
Ratifies  the  Confederation,  93.  Ac- 
tion of,  commended,  95.  Attempts  to 
pay  its  quotas  in  paper  money,  163, 
Appoints  and  instructs  delegates  to 
the  Convention,  249.  Purely  “fed- 
eral” government  proposed  by,  370. 
Plan  of,  Hamilton’s  radical  objec- 
tions to,  374;  condemned  by  Madi- 
son, 379.  Opposed  to  division  of 
legislature,  897.  In  favor  of  equality 
of  suffrage  in  House  of  Representa- 
tives, 400  ; of  equal  representation  of 
states  in  Senate,  403,  407,  418.  Had 
four  representatives  in  first  House, 
408.  In  favor  of  census  of  free  in- 
habitants, 410 ; of  executive  holding 
office  during  “good  behavior,”  424. 
Vote  of,  respecting  citizenship  as 
qualification  for  office,  448;  respecting 
money  bills,  453,  4.54.  In  favor  of 
each  state  having  one  vote  in  Senate, 
460.  Vote  of,  respecting  eligibility 
of  members  of  Congress  to  office,  476 ; 
respecting  representation  of  slaves, 
503;  re.specting  slave-trade,  511;  re- 
specting admission  of  states,  541.  In 
favor  of  taxing  exports,  505.  Op- 
posed to  restricting  president  to  stat- 
ed salary,  574.  Ratification  of  Con- 
stitution by,  639.  Convention  of, 
645.  Position  of,  respecting  Consti- 
tution, 645.  Always  in  favor  of  vest- 


INDEX. 


7G2 


ing  regulation  of  commerce  in  general 
government,  C46.  Action  of,  in  Con- 
stitutional Convention,  resi)ccting 
representation,  C46.  R(‘[)resentation 
of,  concerning  tlie  Articles  of  Confed- 
eration. 700,  Act  of,  accepting  them, 
703. 

New  States,  admission  of,  under  tlie  Con- 
federation, 198;  under  the  Ordinance 
of  1787,  20G.  See  IFestern  'Territory 
and  Northwestern  Territory. 

New  York,  Constitution  of,  formed,  84. 
Act  of,  respecting  boundaries,  etc.,  92. 
Magnanimity  of,  commended,  95.  Ac- 
tion of,  upon  the  revenue  system  of 
1783,  1(56,  233,  243.  Act  of,  respecting 
British  debts,  171.  Trespass  act  of, 
172.  Proceedings  of,  respecting  a gen- 
eral commercial  convention,  233,  243. 
Resolution  of,  for  a general  Conven- 
tion, 243 ; how  received  in  Congress, 
243,  Ap])oiuts  and  instructs  delegates 
to  tlie  Convention,  250.  Rank  of, 
at  formation  of  Constitution,  387. 
Commerce  of,  at  formation  of  Consti- 
tution, 387.  Views  of  public  men  of, 
387.  Opposed  to  division  of  legisla- 
ture, 397.  In  favor  of  equality  of 
suffrage  in  House  of  Representatives, 
400 ; in  Senate,  403,  407.  Had  six 
re])resentatives  in  first  House,  408. 
Withdrawal  of  delegates  of,  from 
Convention,  418,  430,  620,  631.  Re- 
jection of  Constitution  by,  prc'bable, 
430.  Vote  of,  respecting  money  bills, 
453.  In  favor  of  each  state  liaving 
one  vote  in  Senate,  460.  Reception 
of  Constitution  in,  631.  Executive 
government  of,  opposed  to  Constitu- 
tion, 631.  Jealousy  of  Union  exist- 
ing in,  631.  Letter  of  delegates  of, 
against  Constitution,  631.  Proceed- 
ings of  legislature  of,  respecting  Con- 
stitution, 631 ; of  parties  in,  respect- 
ing Constitution,  631.  Convention 
of,  to  vote  on  Constitution,  632.  For- 
midable opposition  to  Constitution  in 
convention  of,  648.  Legislature  of, 
divided  on  question  of  submitting 
Constitution  to  people,  652.  Con- 
vention of,  importance  of  action  of, 
657  ; time  of  meeting  of,  661 ; met  at 
Poughkeepsie,  661 ; anxiety  respect- 
ing action  of,  C62  ; Hamilton  leading 
spirit  in,  674 ; discussion  in,  respect- 
ing system  of  representation  proposed 
by  Constitution,  677.  Opponents  of 


Constitution  in,  arguments  and  plan 
of,  676 ; Hamilton’s  reply 'to,  676.  Ef- 
fect on,  of  ratification  by  New  Hamp- 
shire, 677.  Opponents  of  Constitution 
in,  schemes  of, 684;  numerous  amend- 
ments to  Constitution  proposed  by, 
685;  plan  of,  to  adopt  Constitution 
conditionally,  686.  Great  struggle  in, 
over  ratification  of  Constitution,  686. 
Circular  letter  from,  to  all  other 
states,  687.  Federalists  of,  justified  by 
Washington,  688 ; complaints  against, 
688. 

Neso  York  City,  applies  to  the  Conti- 
nental Congress  respecting  British 
troops,  20.  Occupied  by  tlie  British, 
63.  Temporary  establishment  of  seat 
of  government  at,  effect  of,  490,  689. 
Celebration  in,  of  adoption  of  Con- 
stitution, 689.  Honors  ^laid  by,  to 
Hamilton,  689. 

Nicholas,  (3koi;ge,  a leading  advocate 
of  Constitution  in  Virginia,  633. 

NoUlity,  title  of,  cannot  be  granted  by 
Congress,  546. 

Non-Intercourse,  when  and  why  adopted 
by  colonies,  15.  Association  for,  rec- 
ommended and  adopted,  15. 

North  Carolina,  a provincial  govern- 
ment, 2.  Constitution  of,  formed, 
84.  Appoints  and  instructs  delegates 
to  the  Convention,  248.  0[q)osed  To 
equality  of  suffrage  in  House  of  R<q)- 
resentatives,  400  ; to  equality  of  votes 
in  Senate,  403,  453.  Vote  of,  respect- 
ing equal  vote  of  states  in  Senate. 
403,  407,  418;  respecting  census  of 
free  inhabitants,  410.  Had  five  rep- 
resentatives in  first  House,  408.  Oji- 
])Osed  to  executive  holding  office  dur- 
ing “good  behavior,”  424.  Vote  of, 
respecting  citizenship  as  qualification 
for  office,  448  ; respecting  money  bills. 
453,  454.  Divided  on  quest icm  of 
nine  years’  citizenship  as  qualifica- 
tion of  senator,  458.  Oiiposed  to  each 
state  having  one  vote  in  Senate,  460  ; 
to  taxing  exports,  505.  Position  of, 
in  Convention,  resjiecting  slave-trade, 
506,  508.  Vote  of,  respecting  slave- 
trade,  511 ; on  suspension  of  habeas 
corpus,  545.  Cession  by,  in  1790,  543. 
Opposed  to  restricting  iiresident  to 
stated  salary,  574.  Convention  of, 
anti-federal  majority  in,  692 ; debate 
in,  692;  amendments  to  Constitution 
proposed  by,  693;  peculiar  action  of. 


INDEX. 


703 


()93.  At  tit  lido  of,  placed  Union  in 
new  crisis,  ()U7. 

yortheru  states,  in  favor  of  granting  to 
government  full  revenue  and  coininer- 
eial  powers,  502.  Chief  motive  of, 
for  forming  Constitution  a commer- 
cial one,  506.  Cut  off  from  British 
West  India  trade,  506.  Separate  in- 
terests of,  different,  507. 

Xoyihwcstern  Territory  ceded  Vir- 
ginia, 94,  198.  Cession  modihed,  202. 
Ordinance  respecting,  why  framed, 
203;  provisions  of,  203;  character  of, 
206.  Ordinance  for,  reported,  .302. 
Cession  of,  323.  Origin  and  relations 
of,  etc.,  533.  Jefferson’s  resolve  for 
organization  of  states  in,  534.  Slav- 
ery in,  proposals  for  prohibiting,  534. 
Ceded  on  what  trusts,  536,  538.  Ad- 
mission of  new  states  under,  see  New 
States. 

O. 

Oath  of  office,  proposed  bj^  New  Jersey 
in  1778,  90. 

Oath  of  Allegiance,  to  the  king,  received 
by  Sir  William  Howe  in  New  Jersey, 
73.  To  the  United  States  required  by 
Washington  in  New  Jersey,  74 ; dis- 
satisfaction occasioned  by,  74.  Pro- 
priety of,  defended  by  Washington, 
75.  Prescribed  in  Congress  in  1778, 
75. 

Ohligation  of  Contracts,  clause  respect- 
ing, taken  from  the  Ordinance  of 
1787,  302. 

Officers  of  United  States,  appointment 
of,  581. 

Officers  of  the  Revolution,  treatment  of, 
by  Congress  and  the  country,  107, 

108.  Pay  of,  107.  Proceedings  in 
Congress  respecting  half-pay  for,  107, 

109.  Pennsylvania  line,  109.  Pro- 
ceedings of,  respecting  their  pay.  111. 
See  Army  of  the  Revolution,  Halfimy, 
and  Neivhargh  Addresses. 

Oligarchy,  detested  by  people  of  United 
States,  466. 

Orders  in  Couaci?,  respecting  trade  with 
the  United  States,  191.  Efforts  of 
Congress  to  counteract,  192.  Effect 
of,  on  Northern  States,  506. 

Ordinance  of  1787,  framing  of,  302.  Ad- 
mission of  new  states  provided  for 
by,  360.  Fixed  no  mode  of  admitting 
new  states,  360.  Provisions  of,  535. 
Slavery  excluded  by,  535.  Author  of, 


535,  549.  Passed,  548.  Character  of, 
549.  Provision  in,  respecting  con- 
tracts, occasion  of,  549.  Extradition 
of  slaves  under,  604.  Note  on,  740. 

Osnahurg,  Bishop  of,  rumored  purpose 
of  loyalists  nvsjiecting,  623.  After- 
wards Duke  of  York,  624. 

P. 

Paine,  Rouert  Treat,  delegate  to  first 
Continental  Congress,  8. 

Palfrey,  Colonel,  sent  to  New  Hamp- 
shire to  arrest  Tories,  45. 

Taper  Money,  ffrst  issued  by  the  Conti- 
nental Congress,  53.  Signing  of,  54. 
State  systems  of,  under  Confedera- 
tion, 514.  See  Rhode  Island. 

Pardon,  president’s  power  of,  579.  See 
Treasot. 

Parliament,  British,  authority  of,  over 
trade,  how  recognized  by  first  Conti- 
nental Congress,  14.  Two  houses  in, 
origin  of,  395;  mutual  relations  of, 
396;  Corruption  in,  origin  and  extent 
of,  470;  effect  of  knowledge  of,  on 
framers  of  Constitution,  470.  Neces- 
sity of  officers  of  state,  etc.,  sitting  in, 
477.  Analogy  of  Congress  to,  478. 

Parsons,  Theopi^ilus,  motion  of,  in 
ISIassachusetts  convention,  to  ratify 
Constitution,  653.  Form  of  ratifica- 
tion and  iiroposed  amendments  drawn 
by,  656. 

Patents  for  useful  inventions,  subject 
of,  brought  forward  by  Pinckney, 

531.  State  legislation  concerning,  531. 
Power  over,  surrendered  to  Congress, 

532. 

Patterson,  William,  mover  of  New 
Jersey  plan  of  government,  371.  Ar- 
guments of,  in  Convention,  371. 

Peace,  effect  of,  upon  the  country,  120. 
See  Treaty  of  Peace. 

Peace  Estahlishment.  See  Washington  and 
Hamilton. 

Pendleton,  Chancellor,  a leading  ad- 
vocate of  Constitution  in  Virginia, 
633. 

Pennsylvania,  a proprietary  government, 
2.  Constitution  of,  formed,  84.  Stop- 
law  of,  171.  Appoints  and  instructs 
delegates  to  the  Convention,  249. 
Had  but  one  chamber  in  legislature, 
397.  Op])Osed  to  election  of  senators 
by  state  legislatures,  398 ; to  equal- 
ity of  suffrage  in  House  of  Repre- 
sentatives, 400 ; to  equal  represen- 


764 


INDEX. 


tation  of  states  in  Senate,  403,  407, 
418,  453.  Had  ei«;lit  representatives 
in  lirst  House,  408.  In  favor  of  cen- 
sus of  free  inhabitants,  410  ; of  execu- 
tive holding  oltice  during  ‘‘good  be- 
havior,” 424.  Oi)posed  to  ])roperty 
qualification  for  olhce,  434.  Constitu- 
tion of,  citizenslii[)  nnder,  446.  Vote 
of,  respeeting  citizenship  as  qnalilica- 
tion  for  office,  448;  respecting  money 
bills,  454.  Opi»osed  to  nine  years’ 
citizenship  as  qnalifieation  of  sena- 
tor, 458;  to  each  state  having  one 
vote  in  Senate,  460;  to  impeachments 
being  tried  by  Senate,  482.  In  favor 
of  taxing  exports,  505.  Vote  of,  re- 
specting slave-trade,  511.  Ratifica- 
tion of  Constitution  by,  639.  Con- 
vention of,  first  to  meet,  641.  Second 
state  in  population,  in  1787,  641. 
Western  counties  of,  insurrection  in, 
643;  opposition  of,  to  Constitution, 
643,  645. 

People  of  America,  when  not  associated 
as  such,  10.  Sole  original  source  of 
political  power,  337,  612,  619.  Will 
of,  how  to  be  exercised,  612;  on  a 
new  exigencj^,  how  to  be  ascertained, 
619. 

Petition,  right  of  assembling  for,  assert- 
ed, 15.  Of  Continental  Congress  to 
the  king,  15,  24. 

Philadelphia,  threatened  loss  of,  to  the 
enemy,  69.  Falls  into  the  hands  of 
the  enemy,  78.  Fought  for,  at  the 
battle  of  the  Brandywine,  78.  The 
scene  of  many  great  events,  641. 
Demonstration  at,  in  honor  of  adop- 
tion of  Constitution,  683. 

PiCKEUiNG,  Timothy,  suggests  academy 
at  West  Point,  147. 

Pinckney,  Charles,  plan  of  govern- 
ment submitted  by,  333.  Proposition 
of,  respecting  House  of  Representa- 
tives, negatived,  338.  Suggestions 
of,  res))ecting  public  debt,  revenue, 
etc.,  518.  In  favor  of  Constitution, 
636. 

Pinckney,  Charles  Cotesworth.  Rev- 
olutionary services  of,  303.  Views 
of,  respecting  the  requisite  reform, 
304 ; on  the  slave-trade,  304,  306,  307  ; 
respecting  cousecpiences  of  rejection 
of  Constitution,  622.  Proposition  of, 
respecting  taxes  on  exports,  435;  re- 
specting extradition  of  slaves,  435, 
604.  Notifies  Convention  of  position 


of  South  Carolina  concerning  tax  on 
exports,  495.  In  favor  of  Constitu- 
tion, 636.  Writes  to  Washington  of 
adoi)tion  of  Constitution  by  South 
Carolina,  657.  Fidelity  of,  to  South 
Carolina,  658.  Arguments  of,  in  South 
Carolina  convention,  659,  660. 

Piracy,  nature  of,  5‘26.  Power  of  Con- 
gress to  define  and  punish,  5‘26. 

Pitt,  William,  designs  commercial  re- 
lations with  the  United  States,  190. 
His  bill  to  effect  them,  190.  His  ex- 
traordinary opportunities,  ‘278.  Esti- 
mate of,  ‘278. 

Political  Science,  among  the  ancients, 
253.  In  the  Middle  Ages  of  Europe, 
‘254;  in  England,  254;  in  France, 
255. 

Popular  Governments,  American  theory 
of,  175. 

Population  of  states  in  1790,  table  of, 
348. 

Ports,  no  preference  to  be  given  to,  522. 

Post  - Office  department.  Continental, 
first  established,  22 ; colonial,  291. 
Power  to  establish,  extended  to  post- 
roads, 524. 

Preamble  of  Constitution,  as  reporttul 
and  adopted,  553;  language  of,  im- 
portant, 554. 

President,  making  of  treaties  by,  with 
consent  of  Senate,  465.  Officers  pro- 
posed to  be  appointed  by,  with  con- 
sent of  Senate,  465.  Re-eligibility  of, 
arguments  in  fiivor  of,  465.  Choice 
of,  proposed  method  of,  465 ; by  Sen- 
ate, objections  to,  466,  .565;  ultimate, 
by  House  of  Representatives,  468,  567. 
Revisionary  control  over,  where  to  be 
lodged,  468.  Extensive  patronage  of, 
476.  Subject  to  impeachmeut,  482; 
for  what  causes,  569.  Veto  power  of, 
484.  Objections  of,  to  law,  to  be  en- 
tered on  journal  of  Congress,  484. 
Choice  of,  direct,  by  people,  nega- 
tived, 563;  by  electors,  objections  to, 
563;  advantages  of,  564 ; method  of, 
564.  Term  of  office  of,  proposed  to 
be  sev(ui  years,  563.  Choice  of,  by 
majority  of  electors,  objections  to, 
566.  Vacancy  in  office  of,  567  ; wdien 
Congress  to  provide  for,  570.  “ In- 

ability” of,  to  discharge  duties, 
meaning  of,  569;  how"  aseertained, 
569.  Iiisiliiity  of,  569.  Choiee  of, 
changes  in  mode  of,  570;  if  not  made 
before  4th  of  March,  571 ; by  House 


INDEX. 


ro5 


of  Represciitativos,  to  bo  from  tliroo 
liiglu'st  candidatos,  571.  Doatli  of, 
and  of  vico-presidcnt,  572.  Qnalili- 
cations  of,  575.  Pay  of,  ar<;nim‘nt.s  in 
favor  of,  575;  not  to  bo  increased  noi- 
<liniini,shed  dnring  term  of  oflice,  574. 
Forbidden  to  rec('ivo  more  than  stat- 
ed salary,  574.  Conncil  for,  question 
concerning,  574.  May  require  opin- 
ions of  cabinet  otticeis,  575.  Alone 
res])onsible  for  conduct  of  executive 
department,  575.  Powers  of,  576;  to 
make  war  and  peace,  577 ; over  state 
militia,  .578 ; to  pardon  offences,  579 ; 
to  appoint  officers,  581.  “Executive 
j)ower”  vested  in,  meaning  of,  578. 
Oath  of,  to  execute  laws,  578.  Com- 
mander-in-chief, 578.  To  prosecute 
war,  579.  Treaty-making  power  of, 

579.  To  receive  ambassadors,  etc., 

580.  Cannot  create  offices,  582.  To 
inform  Congress  of  state  of  Union, 
582.  To  recommend  measures  to  Con- 
gress, 582.  May  call  extra  sessions  of 
Congress,  582.  When  may  adjourn 
Congress,  585. 

Pkingle,  John  Julius,  in  favor  of  Con- 
stitution, 056. 

Prize-Couris,  want  of,  under  the  Revo- 
lutionary government,  50.  Establish- 
ment of,  urged  by  Washington,  52. 
Of  Massachusetts,  trials  in,  52.  Co- 
lonial, appeals  from,  to  Congress,  ,52. 
Under  Constitution,  526. 

Property,  urged  as  basis  of  representa- 
tion, 407.  As  a qualification  for  office, 
453,  444. 

Proprietary  Governments,  form  and  char- 
acter of,  2. 

Protections,  issued  by  Sir  William  Howe 
in  New  Jersey,  75.  Surrender  of,  re- 
quired by  Washington,  74. 

Provincial  Governments,  form  and  char- 
acter of,  2. 

PnhUc  Lands.  See  Western'  Territory, 
Nortluvestern  Territory,  and  Ordinance 
of  1787. 

Q. 

Qualifications,  of  national  officers,  pro- 
posals respecting,  433 ; landed,  re- 
jected, 453 ; property,  an  embarrass- 
ing subject,  444.  Of  electors,  43.3, 
439,  441.  Of  voter  in  Massachusetts, 
434.  Of  members  of  Congress,  439. 
Of  citizenship,  embarrassments  re- 
specting, 444;  attempt  to  exempt 


certain  persons  from  rule  respecting, 
446,  448.  Of  senators,  458.  Of  vice- 
president,  571.  Of  president,  575.  Of 
leligious  test,  never  to  be  required, 
617. 

Qneeids  County,  Long  Island,  inhabitants 
of,  to  be  disarmed,  46. 

Quorum,  discussions  in  Convention  re- 
specting, 485. 

Quotas,  first  a})])ortionment  of,  among 
the  colonies,  21, 22.  Of  troops  in  1776, 
64.  See  Requisitions. 

R. 

Ramsay,  Dr.  David,  in  favor  of  Consti- 
tution, 636. 

Randolph,  Edmund,  urges  Washington 
to  atfend  the  Convention,  246,  310. 
Revolutionary  services  of,  310.  Gov- 
ernor of  Virginia,  310.  Course  of,  in  the 
Convention,  310.  Reasons  of,  for  sup- 
porting the  Constitution,  311.  Gene- 
alogy of,  314.  Plan  of  government 
ju'oposed  by,  333,  577.  A member  of 
committee  to  apportion  representa- 
tives, 407.  Objections  of,  to  com- 
pound ratio  of  representation,  409. 
Proposition  of,  respecting  census, 
416;  to  strike  out  “wealth’’  from 
rule  of  representation,  417.  In  favor  of 
confining  equality  of  states  in  Senate 
to  certain  cases,  418.  Views  of,  respect- 
ing money  bills,  454.  Resolution  of, 
respecting  admission  of  new  states, 
538.  Refused  to  sign  Constitution, 
why,  621,  665.  Position  of,  respecting 
Constitution,  633.  Advocated  adop- 
tion of  Constitution  in  Virginia  con- 
vention, 665. 

Randolph,  Peyton,  president  of  first 
Continental  Congress,  8;  of  second 
Continental  Congress,  18.  Death  and 
character  of,  18. 

Ratification  of  Constitution,  as  marking 
character  of  government,  364.  Differ- 
ent theories  respecting,  427.  Mode 
of,  555;  resolutions  respecting,  555; 
purpose  of,  555 ; an  embarrassing 
question,  617.  By  only  part  of 
states,  effect  of,  61ff  Vote  of  states 
respecting,  620,  639.  Unanimous, 

could  not  be  required,  620.  By  nine 
states  sufficient,  621.  Pageants  in 
honor  of,  655.  Public  rejoicings  in 
Baltimoi-e  at,  657.  By  New  Hamp- 
shire, 677,  680.  By  Virginia,  630; 
how  finally  effected,  681 ; form  of. 


INDEX. 


7GG 


682.  Vitiated  by  condition,  in  Madi-  ' 
son’s  opinion,  686.  Great  strngf^le  | 
over,  in  New  York,  686.  See  the  dif- 
ferent states. 

liccords  and  Judicial  Proceedings  of 
states,  full  faith  to  be  <j;iveii  to,  in 
other  states,  601.  Proof  and  effect 
of,  601. 

Read,  George,  views  of,  res]iecting  rule 
of  suffrage  for  House  of  Representa- 
tives, 398. 

Pegnlation  of  Commerce  proposed  by  New 
Jersey  in  1778,  89,  90.  Not  provided 
for  b}'  the  Confederation,  89, 101.  Ad- 
vantages of,  not  perceived,  120.  Or- 
igin of,  as  a national  power,  186. 
Washington’s  views  respecting,  224. 
Popular  meetings  in  Boston  in  favor 
of,  226.  Policy  of  Congress  respect- 
ing, in  1785-86,  227. 

Pepresentation,  views  of  members  of 
Convention  respecting,  325.  In  Con- 
gress, different  views  respecting,  336; 
difficulty  in  fixing  ratio  of,  340.  As 
affected  by  state  interests,  340.  Orig- 
inal division  between  states  respect- 
ing, 344.  Under  Virginia  and  New 
Jersey  plans,  378.  Great  difficulty  iu  j 
adjusting,  380.  Difficulty  of  fixing 
different  basis  of,  for  two  houses  of 
Congress,  397.  Committee  to  adjust 
whole  system  of,  405.  Dr.  Franklin’s 
proposal  in  Congress  concerning,  406. 
Ratio  of,  in  House  of  Representatives, 
406.  Of  slaves,  408.  Compound  ra- 
tio of,  depending  on  numbers  and  [ 
wealth,  proposed,  409  ; objections  to, 
409 ; how  to  be  applied,  412.  By  ! 
numbers,  as  affected  by  slaves,  410,  | 
502.  And  taxation  to  go  together,  413.  | 
System  of,  proposed  by  Constitution,  I 
discussion  on,  in  New  York,  677.  j 

Pepresentatives,  part  of  the  Provincial  | 
government,  2.  In  the  charter  gov-  ' 
ernments,  how  chosen,  3.  Apportion- 
ment of,  objections  to,  407 ; iu  first 
House,  how  made,  408. 

Pepresentaiive  Government  familiar  to  the 
American  people,  81. 

Reprisals  autliorized  by  the  Continental 
Co]igress,  22. 

Pepnblican  Government  guaranteed  to 
states,  426;  by  Constitution,  607. 
Guarantee  of,  to  states,  object  of,  610 ; 
meaning  of,  in  America,  611. 

Pepublican  Libertg,  nature  of,  317,  318. 
How  to  be  preserved,  319. 


Resolutions  as  referred  to  committee  of 
detail,  435. 

Requisitions,  provision  for,  under  the 
Confederation,  101.  Of  1781,  105. 
Made  and  not  complied  with,  116. 
From  1782  to  1786,  how  treated,  120. 
In  1784,  162,  163.  In  1785,  163.  In 
1786,  163.  Supply  received  from,  in 
1781-1786,  164 ; inadequacy  of,  de- 
clared by  Congress,  166.  Effect  of,  on 
the  proposed  revenue  sj'stem,  164. 

Revenue,  report  of  committee  of  detail 
respecting,  501.  Power  over,  gener- 
ally conceded  to  new  government, 
501.  Different  systems  of,  under  Con- 
federation, 514.  Powers  of  goveru- 
ment,  influence  of,  515.  Power,  qual- 
ifications of,  proposed,  518.  From 
imports,  easiest  mode  of  paying  ex- 
penses of  governmejit,  648. 

Revenues,  of  the  Confederation,  101. 
Numerous  questions  respecting,  494. 
Collection  of,  by  Congress,  520. 

Revenue  Bills,  privilege  of  originating, 
views  of  members  of  Convention  re- 
specting, 454 ; restricted  to  House  of 
Representatives,  455. 

Revenue  System  of  1783,  origin  and  pur- 
pose of,  118.  Modified  by  Congress, 
120.  Defeated  by  New  York,  120. 
Design  of,  124.  Effect  of  its  proposal, 
126.  Chaiacter  of,  152.  Under  con- 
sideration in  1784.  162.  How  acted 
on  in  1786,  165.  New  appeal  of  Con- 
gress on  the  subject  of,  165,  166.  Ev- 
ery state  assents  to,  but  New  York, 
166.  Act  of  New  York  concerning,  166. 
Hamilton’s  answer  to  the  New  York 
objections  to,  166.  New^  York  again 
appealed  to  respecting,  167 ; refuses 
to  accede,  167.  Action  of  New  York 
respecting,  231.  Final  appeal  of  Con- 
gress for,  233.  Rejected  by  New  York, 
233, 243.  Address  on,  written  by  Mad- 
ison, 283. 

Revolution,  right  of,  613. 

Revolutionarif  Congress,  take  up  the  Ar- 
ticles of  Confederation,  78.  Govern- 
ment of,  breaking  down,  79.  Change 
in  the  members  of,  after  1777,  87. 
Leading  members  of,  in  1777  and 
1778,  87;  in  1776,  88.  Weakness  of, 
322.  See  Congress. 

Revolutionary  Government,  defects  of, 
38. 

Rhode  Island,  a charter  government,  3. 
Resists  the  claim  of  the  great  states  to 


INDEX. 


Avestern  hinds,  91.  Refuses  to  fjrant 
imposts  to  Congress,  117,  283.  Ham- 
ilton’s answer  to,  118.  Attempts  to 
})ay  its  quotas  in  paper  money,  1G3. 
Not  represented  in  Constitutional 
Convention,  328,429.  Did  not  assent  to 
revenue  system  of  1783,  328.  Admit- 
ted to  Union  in  1790, 329.  Interests  of, 
attended  to  by  Con vention,  330.  Had 
one  representative  in  first  House,  408. 
Ratilieation  of  Constitution  by,  im- 
probable, 429.  Reason  of,  for  not  at- 
tending Convention,  525.  Took  no 
part  in  formation  of  Constitution,  620. 
Opposition  to  Constitution  in,  ])eenl- 
iarly  intense,  693  ; causes  of,  693. 
Jealous  of  other  communities,  693. 
Principles  of  founders  of,  falsely  ap- 
plied, 693.  Paper -money  party  in, 
great  power  of,  694.  Great  antago- 
nism in,  between  town  and  country, 
694.  Opponents  of  Constitution  in, 
ridiculed  and  scorned,695.  Great  want 
of  enlightenment  in,  695.  Action  of 
General  Assembly  of,  on  Constitution, 

696.  Peo[)le  of,  apparently  nearl}' 
unanimous  against  Constitution,  696. 
Final  prevalence  of  better  counsels 
in,  696.  Present  prosperitj^  of,  696. 
Attitude  of,  placed  Union  in  new  cri- 
sis, 697. 

Jkights.  See.  Colonies. 

Robinson,  Mr.,  Speaker  of  Virginia 
House  of  Burgesses,  32.  Celebrated 
compliment  of,  to  Washington,  32. 

Rousseau,  J.  J.,  political  discussions  of, 
alluded  to,  255. 

Bide  of  Apporlionmeni , proposal  to 
change  from  land  to  numbers,  163. 

Rutledge,  Edward,  in  favor  of  Con- 
stitution, 636.  Arguments  of,  in  con- 
vention of  South  Carolina,  660. 

Rutledge,  John,  a member  of  commit- 
tee to  apportion  representatives,  407. 
Motion  of,  for  assumption  of  state 
debts,  519.  In  favor  of  Constitution, 
636. 

S. 

Seat  of  Government,  action  respecting, 
434.  None  under  Confederation,  487. 
History  of  establishment  of,  488. 
Grave  questions  concerning  location 
of,  490.  Impolicy  of  establishing  at 
New  York  or  Philadelphia,  689.  Em- 
barrassments attending  selection  of, 

697. 


7G7 

j Sectional  Jealousy,  causes  and  operation 
I of,  251. 

i Sklman,  captain  in  the  Revolutionary 

I naval  force,  51. 

Senate,  reasons  for  present  constitution 
of,  339.  Rule  of  suffrage  in,  343.  Nu- 
merical representation  in,  favored  at 
first,  344.  To  hold  office  during  ‘‘  good 
behavior”  under  Hamilton’s  plan, 375, 
379,  334.  Members  of,  chosen  for  six 
years,  398,  469  ; qualifications  of,  398, 
457.  Olqects  of,  400;  how  to  be  at- 
tained, 401.  Difficnlty  in  fixing  basis 
of,  401.  Mr.  Baldwin’s  model  of,  401. 
Fortunately  not  founded  on  relative 
wealth  of  states,  401.  Votes  of  states 
respecting,  403 ; representation  in,  418. 
Advantages  of  present  constitution 
of,  419.  Members  of,  to  be  two 
from  each  state,  432;  to  vote  per 
capita,  432 ; must  have  been  citizens 
nine  j^ears,  449,  458.  Slight  analogy 
of,  to  House  of  Lords,  452.  Equality 
of  votes  in,  by  what  states  resisted, 
453.  Choice  of  president  by,  in  cer- 
tain events,  proposed,  456,  564. 

Scheme  of,  tending  to  oligarchy,  457. 
May  amend  revenue  bills,  4.57.  Pow- 
ers of,  as  at  first  proposed,  4.57.  Num- 
ber of  members  of,  origin  of,  458. 
Method  of  voting  in,  origin  of,  458. 
Present  mode  of  voting  in,  advan- 
tages of,  460.  Vacancies  in,  how 
filled,  461.  Primary  pniqiose  of,  462. 
Disposition  to  accnmnlate  power  in, 
462.  Constitution  of,  great  embar- 
rassments respecting,  464.  Separate 
action  of,  difficult  to  determine,  464. 
Consent  of,  to  certain  acts  of  presi- 
dent, necessary,  465.  Proposed  choice 
of  president  by,  objections  to,  465. 
Only  body  fit  to  have  revisionary 
control  over  appointments,  468.  Rati- 
fication of  treaties  by,  468.  Ultimate 
choice  of  president  taken  from,  468. 
Length  of  term  in,  469.  Biennial 
change  in,  469.  To  try  imjieach- 
ments,  482.  Quorum  of,  483.  Presi- 
dent of,  484.  May  choose  president 
pro  tempore,  484.  Choice  of  vice-pres- 
ident by,  quorum  for,  571 ; majority 
necessary  to,  571.  Foreign  relations 
committed  to,  576.  Proposed  appoint- 
ment of  ambassadors  and  judges  by, 
577.  Treaty  - making  power  of,  579. 
May  propose  treaty  to  president,  581. 
Certain  controversies  between  states, 


YG8 


INDEX. 


proposed  to  be  tried  by,  586.  Equali- 
ty of  states  in,  guaranteed  by  Consti- 
tution, GIG. 

Shays's  Rehellion,  causes  of,  179.  Prog- 
ress of,  181,  182.  How  arrested,  182.  i 
How  acted  upon  in  Congress,  182.  j 
Elfect  of,  upon  tbe  political  state  of  j 
the  country,  183.  Abettors  of,  op-  i 
posed  to  Constitution,  630. 

Sherman,  Roger,  one  of  tlie  committee 
to  prepare  Declaration  of  Indepen- 
dence, 35.  0[>posed  to  tax  on  ex- 
ports, 504.  Views  of,  respecting  tax 
on  slaves,  510.  Motion  of,  respecting 
payment  of  old  debts,  520. 

Slavery,  British  government  responsible 
for  the  existence  of,  61.  Complex  re- 
lations of,  327.  Regarded  by  South- 
ern statesmen  as  an  evil,  412.  When 
and  how  abolished  in  certain  states, 
500.  Existed  in  what  states  at  for- 
mation of  Constitution,  516.  Facts 
respecting,  as  influencing  judgment 
on  Constitution,  516.  A matter  of  j 
local  concern,  516.  State  laws  7'e- 
specting  abolition  of,  516.  In  north- 
western territory,  proposals  for  ex- 
cluding, 534.  State  of,  in  1787,  602. 
Principle  of  common  law  and  law  of 
nations  respecting,  602,  605.  Proba- 
ble duration  of,  603.  Exclusively  a 
matter  of  state  jurisdiction,  603.  Ex- 
isted in  colonies  at  very  early  period, 
604.  Depends  wholly  on  municipal 
law,  606'.  Fortunately  left  to  state 
control,  607,  608. 

Slaves,  as  affecting  ratio  of  representa- 
tion, 325.  Control  of  states  over, 
never  meant  to  be  surrendered,  325. 
Necessarily  regarded  in  forming  Con- 
stitution, 326.  As  affecting  basis  of 
representation,  342.  In  fixing  ratio 
of  representation,  included  as  inhab- 
itants, 343.  Three-fifths  rule  respect- 
ing, whence  derived,  343.  In  fixing 
ratio  of  representation,  how  comput- 
ed, 406 ; admission  of,  proper,  406. 
Propriety  of  counting,  as  inhabitants,  j 
in  adjusting  representation,  408.  Rule  j 
respecting,  under  Confederation,  408.  i 
As  affecting  repi'esentation,  votes  re- 
specting, 410.  Social  and  political  I 
condition  of,  anomalous,  411.  Num- 
ber and  distribution  of,  412,  420.  An 
important  element  in  determining 
rank  of  states,  412.  As  affecling  rep- 
resentation and  taxation,  413.  As  j 


subjects  of  taxation,  views  of  states- 
men respecting,  414.  Compromise  re- 
specting, how  to  bo  effected,  417. 
Extradition  of,  Pinckney’s  proposi- 
tion concerning,  435.  Manumission 
of,  a matter  of  state  control,  499. 
Representation  of,  a concession  by 
North,  why  made,  502 ; Morris’s  mo- 
tion respecting,  503 ; vote  of  New 
Jersey  respecting,  503.  Specific  tax 
on  importation  of,  510.  Word  not 
used  in  Constitution  by  design,  511. 
Ratio  of  increase  of,  from  1790  to 
1850,  513.  Condition  of,  ameliorated 
by  Constitution,  517.  Extradition  of, 
under  Constitution,  history  of  clause 
respecting,  602  ; a necessary  provision 
of  Constitution,  603  ; under  New  Eng- 
land Confederation  of  1643,  604;  un- 
der Ordinance  of  1787,  604;  impor- 
tance of  proper  understanding  of 
clause  respecting,  605  ; necessity  and 
propriety  of  clause,  607.  See  Federal 
Census. 

Slave-Trade,  discountenanced  by  first 
Continental  Congress,  15.  How  dealt 
with  by  the  Constitution,  304.  Abol- 
ished in  England,  305,  306.  French 
abolition  of,  305.  Danish  abolition 
of,  306.  Compromise  respecting,  306. 
Legislation  against,  307.  Discussions 
respecting,  in  England,  307.  Proba- 
ble encouragement  of,  411 ; embar- 
rassments respecting,  495.  State  ac- 
tion respecting,  498.  Necessity  of 
definite  provision  respecting,  498. 
Duty  of  framers  of  Constitution  re- 
specting, 498.  Had  been  abolished 
by  no  nation  in  1787,  498.  A proper 
subject  for  national  action,  499.  As- 
pect of,  political,  499;  moral,  499. 
Economical  importance  of,  to  South- 
ern States,  500.  Report  of  committee 
of  detail  resi>ecting,  501,  502.  Grave 
questions  concerning,  505.  Right  to 
continue,  insisted  on  by  what  states, 
506,  508.  Prosiicctive  prohibition  of, 
provided  for,  510.  Concessions  re- 
specting, timely,  511.  Vote  of  states 
respecting,  511.  Patriotic  course  ot 
both  sections  respecting,  511,512.  Ef- 
fect of  discontinuance  of,  on  Southern 
States,  513.  State  rights  respecting, 
luffore  Constitution,  517.  Tolerated 
by  European  nations  at  formation  ot 
Constitution,  517.  Interdicted  by 
ten  states  before  Constitution,  517. 


INDEX.  700 


Ivc'fiisal  of  certain  states  ti>  grant 
]>()\vor  to  sui)i)icss,  ininuMlial(‘ly,  517. 
Imlelinito  continuance  of,  had  Consti- 
tution not  been  formed,  517. 

South  CaroUua,  a.  i>rovincial  govern- 
ment, 2.  Constitution  of,  formed,  82. 
Tender-law  of,  171.  Appoints  and 
instructs  delegates  to  the  Conven-  ' 
tion,  250.  Opposed  to  e(iuality  of  i 
sntfrage  in  House  of  Eepresentatives,  , 
400 ; e<pial  vot-e  of  states  in  Senate,  | 
40:i,  407,  418,  453.  Had  five  represen-  i 
tatives  in  first  Honse,  408.  0[)poscd  | 
to  census  of  free  inhabitants,  410  ; ex-  | 
eentive  holding  office  during  “good  | 
behavior,”  424.  Vote  of,  respecting 
citizenship  as  qualification  for  office,  j 
448 ; money  bills,  453,  4.54.  Opposed  | 
to  each  state  having  one  vote  in  Sen-  i 
ate,  460.  In  favor  of  states  paying  i 
members  of  Congress,  481.  Refusal  i 
of,  to  submit  to  tax  on  exports,  495,  ! 
497.  Exports  of,  in  one  year,  497.  i 
Position  of,  in  Convention,  respecting 
slave-trade,  506,  508.  Vote  of,  respect- 
ing slfive-trade,  511.  Vote  on  Jeffer- 
son’s resolve  concerning  northwest- 
ern territory,  536.  Cession  by,  in 
1787,  543.  Vote  of,  on  suspension  of 
habeas  corpus,  545.  Coiulition  of  ac- 
ceptance of  Constitution  by,  603.  Mo- 
tion for  surrender  of  fugitive  slaves 
made  by,  in  Constitutional  Conven-  ■ 
tion,  604.  Vote  of,  respecting  citi- 
zenship clause  ill  Constitution,  604. 
Debate  in  legislature  of,  on  Constitu- 
tion, 636.  Convention  in,  to  vote  on 
Constitution,  636 ; importance  of  ac-  j 
tion  of,  657.  Ratification  of  Consti- 
tution by,  658;  rejoicings  at,  658; 
importance  of,  658.  Delegates  of, 
responsibility  assumed  by,  658.  A ' 
great  exporting  state,  659.  He.si-  ' 
tatiou  of,  to  concede  power  to  reg- 
ulate commerce,  659.  Amendments 
to  Constitution  proposed  by,  660.  ' 
Eighth  state  to  ratify  Constitution,  ! 
661. 

Southern  States,  views  of,  respecting  reg-  ' 
Illation  of  commerce,  501. 

Sovereignty,  of  the  people,  established 
by  the  Revohuion,  256;  necessary 
consequences  of  declaration  of,  318. 
Resides  in  the  people,  337.  Powers  ; 
of,  may  be  exercised  by  different  j 
agents,  556.  j 

Spain  claims  the  exclusive  navigation 

L-49  ‘ 


of  the  Mississippi,  210.  Sec  Missis- 
sippi. 

Speaker,  of  House  of  Representatives, 

484. 

Siaudiiig  Jrmic.s,  jc'alousy  of,  55,  63. 

States,  interests  ;ind  relations  of,  before 
Constitution,  316.  Devotion  of,  to 
nqmblicau  liberty,  317.  Union  of, 
essential  to  republican  liberty,  318. 
\V(“akncss  of,  witliout  union,  319. 
General  purposes  of,  in  calling  Con- 
stitutional Convention,  323.  Position 
of,  in  Convention,  330.  Powers  sur- 
rendered by,  to  Confederation,  330. 
Why  represented  in  Congress,  338. 
Diverse  interests  of,  as  affecting  rep- 
resentation, 340.  Tendency  of,  to 
encroach  on  federal  authority,  345. 
Proposed  control  over  legislation  of, 
by  Congress,  345.  Population  of,  in 
1790,  table  of,  348.  Legislation  of, 
control  of  judicial  department  over, 
355.  Admission  of,  358,  360,  381,  426, 
532,  535,  539,  541.  Cessions  by,  to 
Union,  358.  Republican  government 
guaranteed  to,  361,  363,  426,  607. 
jealous  of  general  government,  369. 
Sovereignty  of,  how  reconciled  with 
national  sovereignty,  369.  Plan  to 
abolish,  370.  To  make  partial  sur- 
render of  power  under  Virginia  plan, 
372.  Sovereignty  of,  preserved  under 
New  Jersey  plan,  372.  Conflicts  of, 
with  nation,  probable,  under  Virginia 
plan,  376,  377.  Struggle  between 
large  and  smaller,  respecting  repre- 
sentation, 378.  Proposed  equaliza- 
tion of,  380.  Populations  of,  at  for- 
mation of  Constitution,  386.  Relative 
rank  of,  at  formation  of  Constitution, 
386.  Conflict  among,  as  to  national 
and  federal  systems,  387.  Danger 
of  annihilation  of  sovereignty  of,  by 
national  government,  394.  Danger 
of  alliances  of,  with  foreign  xiowers, 
399.  Preservation  of,  in  Congress, 
conceded  to  be  necessary,  401.  Di- 
vided respecting  constitution  of  Sen- 
ate, 403.  Jealousy  among,  409.  West- 
ern, views  of  members  respecting,  409. 
Slave  and  free,  index  of  wealth  of,  414. 
Wealth  of,  not  measured  by  laud,  415. 
Position  of,  in  Convention,  respecting 
slaves,  416,  417.  Wealth  of,  for  pur- 
pose of  taxation,  determined  by  in- 
habitants, 417.  Smaller,  concession 
to,  in  constitution  of  Senate,  419. 


770 


INDEX. 


Free  and  slave,  popnlations  of,  com- 
]>aved,  420.  Relation  of,  to  Confed- 
eration, 427.  Whetlier  Constitution 
could  l)e  ratilied  by  govenunents  of, 
42H.  Voting  by,  history  of  practice 
of,  460.  Equal  representation  of,  in 
Senate,  just,  464.  Union  desired  by, 
from  dilferent  motives,  509.  Com- 
mercial legislation  of,  under  Confed- 
eration, various,  514.  Revenue  and 
paper-money  systems  of,  under  Con- 
federation, various,  514.  Rights  guar- 
anteed to,  by  Constitution,  517.  Pow- 
er of,  over  slave-trade,  anterior  to 
Constitution,  517.  Ports  of  any  one  of, 
not  to  be  preferred  to  those  of  another, 
522.  Compacts  between,  outside  of 
Articles  of  Confederation,  537.  New, 
temporarj^  governments  for,  Madi- 
son’s motion  respecting,  540.  Admis- 
sion of,  number  of  votes  requisite  for, 
540 ; by  dismemberment  of  state,  540 ; 
by  junction,  541 ; difference  in  cases 
of,  543;  provisions  for,  general,  544. 
Restraints  on  political  power  of,  547. 
Issuing  of  bills  of  credit  prohibited 
to,  548.  Laying  of  duties  and  im- 
posts by,  550.  Cannot  lay  duty  on 
tonnage,  552.  Keeping  of  troops  or 
ships  of  war  by,  552.  Agreements 
by,  with  another  state  or  foreign 
power,  552.  When  may  engage  in 
war,  552.  Governments  of,  how  far 
supreme,  557.  May  be  mnlti plied 
indefinitely  under  Constitution,  560. 
Levying  war  against,  not  treason 
against  United  States,  561.  Certain 
controversies  between,  ijroposed  to 
be  tried  by  Senate,  586.  Constitu- 
tional restrictions  on,  591.  Laws  of, 
constitutionality  of,  how  determined, 
595.  Courts  of,  not  likely  to  admin- 
ister justice  to  foreigners,  etc.,  597. 
Different,  controversies  between  citi- 
zens of,  .597  ; grants  of  lands  by,  juris- 
diction of  cases  respecting,  599.  One 
of  a party  to  a suit,  jurisdiction  in 
cases  of,  599.  Foreign,  jurisdiction  in 
cases  of,  599.  Full  faith  given  to  acts, 
etc.,  of,  601.  Have  exclusive  regula- 
tion ofdomestic institutions, 603.  May 
exclude  foreigners,  606.  Republican 
government  guaranteed  to,  object  of, 
610.  Domestic  violence  in,  applica- 
tion to  general  government  in  case 
of,  610.  Competency  of,  to  abolish 
constitutions,  611.  Must  have  ex- 


ecutive and  legislature,  611.  Protec- 
tion of,  against  domestic  violence, 
613.  E(piality  of,  in  Senate,  forever 
guaranteed  by  Constitution,  616.  Re- 
fusal of,  to  comply  with  requisitions 
of  Congress,  676.  See  Xew  States. 

State  Constitutions,  formation  of,  80,  82. 

State  Governments,  how  formed,  25. 

State  Sovereignty,  early  assertion  of, 
63. 

Stop  Laws.  See  Debts. 

Story,  Joseph,  views  of,  respecting 
president’s  power  to  adjourn  Con- 
gress, 583. 

Suffrage,  Ihile  of.  Governor  Randolph’s 
resolution  respecting,  335.  Change 
in,  opposed  by  Delaware,  335.  In 
Continental  Congress,  339.  In  Con- 
federation, 339.  In  Senate,  343.  For 
House  of  Representatives,  great  de- 
bate on,  398.  According  to  Virginia 
plan,  405.  Different  in  different 
states,  425,  441.  Not  universal  in 
any  state,  612. 

Sullivan,  General,  president  of  New 
Hampshire  convention,  656. 

Sullivan,  James,  governor  of  Massa- 
chusetts, 656. 

Superintendent  of  the  Finances  appointed, 
116.  See  Robert  Morris. 

Supremacy  of  United  States,  meaning 
and  scope  of,  556,  557.  Of  states,  ex- 
tent of,  556,  557.  Of  Constitution,  as 
affecting  national  growth,  559. 

Supreme  Court,  tenure  of  office  of,  356. 
Judges  of,  not  removable  bj’  address, 
357  ; eompensation  of,  357  ; by  whom 
appointed,  357.  Judges  of,  proposed 
appointment  of,  by  Senate,  357,  457, 
462,  577.  Appointment  of,  proposals 
concerning,  465.  Sole  interpreters  of 
Constitution,  558.  Judges  of,  to  be 
nominated  by  president,  581 ; tenure 
of  office  and  salaries  of,  585.  One, 
under  Constitution,  585.  Original  and 
appellate  jurisdiction  of,  586.  Ap- 
pellate jurisdiction  of,  ambiguity 
concerning,  588.  Doubts  about  con- 
ferring power  upon,  to  declare  law 
unconstitutional,  592. 

T. 

Talleyrand,  Prince,  opinion  of,  re 
S])ecting  Hamilton,  276. 

Taxation,  right  of,  denied  to  Parlia- 
ment, 14.  How  distinguished  from 
regulation  of  trade,  14.  Inseparable 


